Draft pending CAA Board Approval

CAA-HK INTERNATIONAL ARBITRATION RULES 2017

Table of Contents

Preamble. 

Model Arbitration Clause. 

Article 1: Scope of Application. 

Article 2: Definition and Interpretation. 

Article 3: Waiver of Right to Object

Article 4: Representation. 

Article 5: Notices, Statements and Other Written Communications. 

Article 6: Time Limit and Calculation. 

Article 7: Notice of Arbitration. 

Article 8: Answer to Notice of Arbitration. 

Article 9: Multiple Contracts in Single Arbitration. 

Article 10: Number of Arbitrators. 

Article 11: Appointment of Sole Arbitrator

Article 12: Appointment of Three Arbitrators. 

Article 13: Confirmation of Arbitrators. 

Article 14: Qualifications of Arbitrators and Disclosure. 

Article 15: Ex parte Communication. 

Article 16: Challenge of Arbitrators. 

Article 17: Replacement of Arbitrators. 

Article 18: Jurisdiction of Tribunal

Article 19: Seat of Arbitration. 

Article 20: Language of Arbitration. 

Article 21: Statement of Claim.

Article 22: Statement of Defence. 

Article 23: Amendments or Supplements.

Article 24: Evidence and Hearings.

Article 25: Tribunal’s Appointment of Experts. 

Article 26: Interim Measures. 

Article 27: Joinder of Additional Party.

Article 28: Consolidation of Arbitrations. 

Article 29: Default

Article 30: Closure of Proceedings. 

Article 31: Applicable Law and Amiable Compositeur

Article 32: Decision-Making by Tribunal

Article 33: Time Limit for Award-Making.

Article 34: Requirements and Effect of Awards. 

Article 35: Settlement

Article 36: Termination of Arbitration. 

Article 37: Correction and Interpretation of Awards. 

Article 38: Additional Awards. 

Article 39: Confidentiality. 

Article 40: Exclusion of Liability. 

Article 41: Expedited Procedure. 

Article 42: Deposit for Costs. 

Article 43: Costs of Arbitration. 

Article 44: Tribunal’s Fees and Expenses. 

Article 45: CAA-HK’s Administrative and Other Fees. 

Article 46 – Currency. 

Schedule 1 – Emergency Arbitrator and Emergency Measures. 

Schedule 2 – Tribunal’s Fees and Expenses (Based on Hourly Rate), Terms and Conditions. 

Schedule 3 – Tribunal’s Fees and Expenses (Based on Amount in Dispute), Terms and Conditions. 

 

Preamble

The CAA Hong Kong International Arbitration Rules (“the Rules”) have been adopted by Chinese Arbitration Association, Hong Kong (“CAA-HK”) to take effect from 1 July 2017.

Parties may adopt the Rules in arbitration agreement or by agreement in writing at any time before or after a dispute has arisen.

 

Model Arbitration Clause

Any dispute, controversy, difference or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity, interpretation, performance, breach or termination, shall be referred to and finally resolved by arbitration administered by CAA-HK under CAA Hong Kong International Arbitration Rules in force when the Notice of Arbitration is submitted, which Rules are deemed to be incorporated by reference in this clause.

Optional: The number of arbitrators shall be [insert one or three].

Optional: The seat of arbitration shall be… [Hong Kong].

Optional: The language of arbitration shall be [insert language].

Optional:The governing law of this arbitration clause shall be the law of [insert jurisdiction].

 

Article 1: Scope of Application

1.         The Rules shall come into force on 1 July 2017, and shall govern any arbitration where an arbitration agreement, whether entered into before or after a dispute has arisen, either:

(a) provides for CAA Hong Kong International Arbitration Rules to apply; or

(b) provides for arbitration “administered by CAA-HK” or words to similar effect;

except where the arbitration agreement designates, or the parties or the Tribunal otherwise designate, Taiwan as the Seat of Arbitration.

2.         The Rules shall apply to any arbitration falling within Article 1.1 in which the Notice of Arbitration is submitted on or after 1 July 2017, subject to such modification as the parties may agree in writing, unless such agreement is inoperative or in conflict with a mandatory provision of the law applicable to the arbitration.

3.         If any of the Rules is inconsistent with any mandatory provision of the law applicable to the arbitration from which the parties cannot derogate, that mandatory provision shall prevail.

For any matters not expressly provided for in the Rules, CAA-HK may administer and the Tribunal may conduct the arbitration in such manner as they consider appropriate, while giving all parties reasonable opportunity to present their case.

 

Article 2: Definition and Interpretation

1.         In the Rules:

“Additional Party” includes one or more parties as specified in Article 27;

“Award” includes an interim, interlocutory, partial or final award, but excludes awards made by Emergency Arbitrator under Schedule 1;

“Answer to Notice of Arbitration” is specified in Article 8;

“CAA-HK” refers to Chinese Arbitration Association, Hong Kong, including any committee, sub-committee, other body or person designated by it to perform its functions;

“Claim” means any claim(s) by any party against any other party and includes counterclaim;

“Claimant” includes one or more claimants;

“Costs of Arbitration” are specified in Article 43;

“Defence” means any defence(s) by any party to any claim or counterclaim submitted by any party, and includes set-off defence;

“Emergency Arbitrator” means an arbitrator appointed under Schedule 1 Section 2;

“Emergency Measures” include one or more measures granted by Emergency Arbitrator under Schedule 1;

“Expedited Procedures” are specified in Article 41;

“Expert” includes one or more experts appointed by a Party or the Tribunal under Article 25;

“Interim Measures” include one or more measures granted by the Tribunal under Article 26;

“Notice of Arbitration” is specified in Article 7;

“Notice of Challenge” is specified in Article 16;

“Party” means any party to the arbitration, including Claimant, Respondent, and any Additional Party;

“Respondent” includes one or more respondents;

“Rules” means the CAA Hong Kong International Arbitration Rules (First Edition, 1 July 2017);

“Seat of Arbitration” is specified in Article 19;

“Statement of Claim” is specified in Article 21;

“Statement of Defence” is specified in Article 22;

“Termination Order” means an order for terminating the arbitration issued by the Tribunal under Article 36; and

“Tribunal” includes one or more arbitrators but excludes any Emergency Arbitrator and arbitrator appointed by Expedited Procedure.

2.         The reference to anything “in writing” or “written”, except for any arbitration clause or arbitration agreement, means the content is recorded in any form (including paper, visual, audio or electronic means) which is accessible and useable for subsequent reference.

3.         Any pronoun may be gender-neutral. Any singular noun may refer to the plural in appropriate circumstances.

4.         Official version of the Rules: Each of the English, Chinese and other language version of the Rules published by CAA-HK is an official version.

In the event of any inconsistency between the different language versions, the English version shall prevail.

In the event of any dispute about the interpretation of the English version, the parties, Tribunal and CAA-HK may consult the Chinese version.

 

Article 3: Waiver of Right to Object

A party who knows or should have known of any non-compliance with any provision of the Rules or any direction or order from the Tribunal and yet proceeds with the arbitration without promptly raising any objection, is deemed to have waived its right to object to such non-compliance.

 

Article 4: Representation

1.     The parties may be represented by any authorised persons of their choice.

2.     The Tribunal or CAA-HK may require proof of authority of any party representatives, such as a power of attorney.

3.     Any party intending to change or add to its representatives after the Tribunal’s constitution shall promptly notify such intended change or addition to the Tribunal, CAA-HK and all other parties.

 

Article 5: Notices, Statements and Other Written Communications

1.         The parties and the Tribunal shall provide CAA-HK with a copy of any notice, statement or other written communication concerning the arbitration.

2.         Any notice, statement or other written communication is deemed to be received by a party, Tribunal or CAA-HK if it is:

(a)   delivered by hand to the addressee personally; or

(b)  delivered via registered post or courier service to:

(i)      the address of the addressee or its representative designated in writing during the arbitration;

(ii)    the address agreed by the parties;

(iii)  any address based on the parties’ practice in prior dealings;

(iv)   any last known address of the addressee if all of the above fails to deliver; or

(c)   transmitted by electronic means (including facsimile and email) that provides a record of its transmission (including time and date) to:

(i)      the facsimile number or email address of the addressee or its representative designated in writing during the arbitration;

(ii)    any facsimile number or email address agreed by the parties; or

(iii)  any last known facsimile number or email address of the addressee if all of the above fails to deliver.

3.         Any notice, statement or other written communication is deemed to be received on the earliest date when it is made in accordance with any of the means specified in Article 5.2.

For this purpose, the date shall be determined according to the local time at the Seat of Arbitration, unless the parties agree otherwise.

4.         Any notice, statement or other written communication made to more than one party or arbitrator is deemed to be received when it is made to the last intended recipient in accordance with any of the means specified in Article 5.2.

 

Article 6: Time Limit and Calculation

1.         Any time limit set by the Tribunal for any notice, statement and other written communication, including Statement of Claim and Statement of Defence, should not exceed 30 days.

However, the Tribunal, or CAA-HK if before the Tribunal’s constitution, may extend such time limit at any party’s request if it concludes that an extension is justified, even in circumstances where such period has already expired.

2.         Any time limit shall begin to run on the day following the day when a notice, statement or other written communication is received or deemed to be received, whichever is earlier, under Article 5.

If the last day of such time limit is an official holiday or a non-business day at the place of receipt, the time limit shall extend to the first following business day.

Official holidays and non-business days occurring during the running of the time limit shall be included in that time limit.

 

Article 7: Notice of Arbitration

1.     A party seeking to commence an arbitration (“Claimant”) shall submit a Notice of Arbitration to CAA-HK, which shall include the following items:

(a)   a demand that the dispute be referred to arbitration;

(b)  the names and contact details of the parties and any representatives (postal and email addresses, telephone and facsimile numbers);

(c)   a reference to, and a copy of, the arbitration agreement(s) invoked;

(d)  a reference to, and a copy of, the contract(s) or other legal instrument(s) out of or in relation to which the dispute arises;

(e)   a description of the nature of the claim, the relief or remedy claimed, and any quantification of the amount claimed or involved;

(f)   a proposal as to the number of arbitrators (e.g. one or three), if this is not specified in the parties’ arbitration agreement or any other agreement;

(g)  any comment regarding the applicable law, the Seat of Arbitration or the language of arbitration;

(h)  any matters which the parties have previously agreed or the Claimant’s proposal regarding the conduct of the arbitration; and

(i)   where applicable, a brief statement describing how the criteria for commencing a single arbitration under multiple contracts in Article 9.2 are satisfied, or any request for consolidation of arbitrations under Article 28.

2.     The Notice of Arbitration shall use the language of arbitration as agreed by the parties.

Absent such an agreement, the Notice of Arbitration shall use either Mandarin Chinese or English. CAA-HK shall make and notify all parties of its preliminary decision on using either Mandarin Chinese or English within seven days of receiving the Notice of Arbitration.

3.     The Notice of Arbitration may also include a Statement of Claim in accordance with Article 21.

4.     When submitting the Notice of Arbitration and any accompanying documents to CAA-HK, the Claimant shall simultaneously provide a copy to all parties, and notify CAA-HK the mode and date of such service.

5.     The Claimant shall pay to CAA-HK a non-refundable application fee for its Notice of Arbitration in the amount published on CAA-HK’s website on the date of submitting the Notice of Arbitration.

6.     CAA-HK may request the Claimant to remedy any non-compliance with the above requirements within an appropriate time limit.

(a)      If the Claimant complies with CAA-HK’s request, the arbitration is deemed to commence on the date when CAA-HK receives or is deemed to receive the initial version of the Notice of Arbitration, and this date shall be determined in accordance with Article 5.

CAA-HK shall notify the parties of the commencement of the arbitration.

(b)      If the Claimant fails to comply with CAA-HK’s request, the submission of the Notice of Arbitration shall not be valid and the arbitration shall not commence. The Claimant may submit the same claim later in another Notice of Arbitration.

 

Article 8: Answer to Notice of Arbitration

1.     Within 30 days of receiving the Notice of Arbitration the Respondent shall submit to CAA-HK an Answer to Notice of Arbitration, which shall include the following items:

(a)   the name, postal and email addresses, telephone and facsimile numbers of the Respondent and any representatives that are different from the description in the Notice of Arbitration;

(b)  confirmation or denial of all or part of the claims;

(c)   any objection to the jurisdiction of the Tribunal to be constituted under the Rules;

(d)  any response to the relief or remedy claimed in the Notice of Arbitration;

(e)   any comment in response to any statements in the Notice of Arbitration regarding the number of arbitrators, the applicable law, the Seat of Arbitration, the language and conduct of the arbitration, or any comment with respect to these matters;

(f)   a brief statement describing the nature and circumstances of any counterclaim or set-off defence, indicating the arbitration agreement under which each counterclaim or set-off defence is made, specifying the relief claimed and any quantification of the amount claimed; and

(g)  any request for consolidation of arbitrations under Article 28.

2.     The Answer to Notice of Arbitrationshall use the language of arbitration as agreed by the parties. Absent such an agreement, the Answer to Notice of Arbitrationshall use either Mandarin Chinese or English in accordance with CAA-HK’s notification of preliminary decision on language under Article 7.2.

3.     The Answer to Notice of Arbitrationmay also include the Statement of Defence in accordance with Article 22.

4.     When submitting the Answer to Notice of Arbitration and any accompanying documents to the Claimant, the Respondent shall simultaneously provide a copy to all parties, and notify CAA-HK the mode and date of such service.

 

Article 9: Multiple Contracts in Single Arbitration

1.         A party may commence a single arbitration for disputes arising out of or in connection with more than one contract, by submitting a single Notice of Arbitration to CAA-HK in accordance with Article 7.

Such Notice of Arbitration shall also include a statement identifying each of the contracts and arbitration agreements invoked, as well as a description of how the criteria in Article 9.2 are satisfied.

2.         CAA-HK may decide to proceed with a single arbitration that it considers proper and appropriate if:

(a)   the parties have agreed to the single arbitration; or

(b)  the disputes arise out of the same arbitration agreement; or

(c)   the disputes arise out of multiple but compatible arbitration agreements between the same or related parties, which involve common questions of law or fact, and the remedy or relief claimed arises out of the same transaction or series of transactions.

3.         If CAA-HK decides not to proceed with a single arbitration, any party may subsequently submit separate Notices of Arbitration for each of the multiple contracts and apply to consolidate some of the arbitrations under Article 28.

 

Article 10: Number of Arbitrators

The Tribunal shall consist of three arbitrators or a sole arbitrator. If the parties have not agreed on the number of arbitrators, CAA-HK shall appoint three arbitrators.

 

Article 11: Appointment of Sole Arbitrator

1.     If a sole arbitrator is to be appointed, the parties, including any multiple Claimants and multiple Respondents, shall jointly appoint the sole arbitrator within 30 days from the date when the Respondent receives the Notice of Arbitration, and they shall provide written evidence of their agreement on such appointment to CAA-HK, unless the parties agree otherwise.

2.     If the parties do not appoint the sole arbitrator within the required time limit, CAA-HK shall appoint the sole arbitrator.

 

Article 12: Appointment of Three Arbitrators

1.     If three arbitrators are to be appointed, each party shall appoint one arbitrator.

If a party does not notify the other party of its appointed arbitrator within 30 days after receiving the other party’s notification of arbitrator appointment, that other party may request CAA-HK to appoint the second arbitrator.

2.     The two appointed arbitrators shall choose a third arbitrator to act as the presiding arbitrator.

Failing such appointment within 30 days from the second arbitrator’s appointment, CAA-HK shall appoint the third and presiding arbitrator.

3.     Where there are more than two parties to the arbitration, any multiple Claimants shall jointly appoint one arbitrator and any multiple Respondents shall jointly appoint the other arbitrator within the time limit required by CAA-HK, unless the parties agree otherwise.

Failing such appointments, CAA-HK shall appoint all three arbitrators and designate one of them as the presiding arbitrator.

 

Article 13: Confirmation of Arbitrators

All appointments of any arbitrator, whether made by the parties or the arbitrators, are subject to confirmation by CAA-HK, upon which the appointments shall become effective.

 

Article 14: Qualifications of Arbitrators and Disclosure

1.         Any arbitrator shall be impartial and independent at all times, and shall not act as advocate for any party.

2.         Before confirmation of appointment, a prospective arbitrator shall disclose in writing to all parties and CAA-HK any circumstances that may give rise to justifiable doubts as to his or her impartiality or independence.

Upon confirmation of appointment and throughout the arbitration, an arbitrator shall promptly disclose in writing to all parties and CAA-HK any such circumstances, unless he or she has already informed them of such circumstances.

3.         A party who does not challenge the arbitrator in accordance with Article 16 within 30 days after receiving the arbitrator’s disclosure is deemed to have waived any potential challenge based on such disclosure later in the arbitration.

 

Article 15: Ex parte Communication

1.         All parties and their representatives shall not have any ex parte communication relating to the arbitration with any arbitrator or prospective arbitrator, except to:

(a)   advise the prospective arbitrator of the general nature of the dispute and the anticipated proceedings;

(b)  discuss the prospective arbitrator’s qualifications, availability, impartiality and independence in relation to the parties; and

(c)   discuss the suitability of the prospective presiding arbitrator where the parties or party-appointed arbitrators will participate in that arbitrator’s appointment.

2.         All parties and their representatives shall not have any ex parte communication relating to the arbitration with any prospective presiding arbitrator.  

 

Article 16: Challenge of Arbitrators

1.         Any arbitrator may be challenged if:

(a)   circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence;

(b)  the arbitrator does not possess any requisite qualifications as agreed by the parties; or

(c)   the arbitrator becomes de jure or de facto unable to perform his or her functions, or for other reasons fails or refuses to act without undue delay.

A party may challenge any arbitrator only for reasons of which he or she becomes aware after that arbitrator has been appointed.

2.         A party who intends to challenge an arbitrator shall, within 30 days after being notified of that arbitrator’s appointment or becoming aware of the circumstances giving rise to a challenge, submit a Notice of Challenge to CAA-HK with a copy to all other parties, the challenged arbitrator and any other arbitrator.

The Notice of Challenge shall be in writing and shall state the reasons for the challenge.

3.         After receiving the Notice of Challenge, the challenged arbitrator may resign or withdraw, or the other parties may agree to the challenge. No acceptance of the validity of any grounds for the challenge shall be implied in either case.

In both cases, a substitute arbitrator shall be appointed pursuant to the procedures applicable to the challenged arbitrator’s appointment. The time limit for the substitute arbitrator’s appointment shall commence on the date when CAA-HK receives the parties’ agreement to the challenge or the challenged arbitrator’s resignation or withdrawal.

4.         If the other parties do not agree to the challenge or the challenged arbitrator does not resign or withdraw within 15 days of receiving the Notice of Challenge, CAA-HK shall decide on the challenge.

Pending CAA-HK’s decision on the challenge, the Tribunal, including the challenged arbitrator, may continue the arbitration, unless CAA-HK orders a suspension of the arbitration.

5.         If CAA-HK sustains the challenge, a substitute arbitrator shall be appointed pursuant to the procedures applicable to the challenged arbitrator’s appointment.

The time limit for the substitute arbitrator’s appointment shall commence on the date when CAA-HK notifies the parties of its decision on the challenge.

6.         If CAA-HK rejects the challenge, any suspension of the arbitration ordered by CAA-HK shall cease and the Tribunal shall proceed with the arbitration.

7.         The party submitting a Notice of Challenge shall pay a challenge fee of USD 1,600.00 to CAA-HK for each of CAA-HK’s decision on the challenge made.

 

Article 17: Replacement of Arbitrators

1.         In the event of an arbitrator’s death, resignation, withdrawal or removal during the arbitration, a substitute arbitrator shall be appointed pursuant to the procedures applicable to the appointment of the arbitrator being replaced.

2.         If an arbitrator is replaced, the arbitration shall resume at the stage where the arbitrator was replaced or ceased to perform his or her functions, unless the Tribunal decides otherwise after consulting with the parties.

 

Article 18: Jurisdiction of Tribunal

1.         Before the Tribunal is constituted, if a party objects to the existence, validity, effectiveness, scope or termination of an arbitration agreement or to CAA-HK’s competence to administer the arbitration, CAA-HK may decide whether and to what extent the arbitration can proceed, and such decision is without prejudice to the admissibility or merits of any party’s objection.

The arbitration shall proceed if and to the extent that CAA-HK is prima facie satisfied that an arbitration agreement may exist under the Rules.

2.         After the Tribunal is constituted, the Tribunal may rule on its own jurisdiction, including any objections to the existence, validity, effectiveness, scope or termination of an arbitration agreement.

3.         The Tribunal may determine the existence or validity of the contract of which an arbitration clause forms a part.

For the purposes of this Article, an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract.

The Tribunal’s decision that the contract is null and void shall not necessarily entail the invalidity of the arbitration clause.

4.         Any objection to the Tribunal’s jurisdiction shall be raised before or in the Statement of Defence or Reply to Counterclaim, unless the Tribunal considers the delay justified in the circumstances.

The fact that a party has appointed, or participated in the appointment of, an arbitrator, does not preclude that party from raising such an objection.

5.         The Tribunal may decide an objection concerning its jurisdiction either as a preliminary question or in an award on the merits.

6.         Pending any challenge to its jurisdiction before a court or other competent authority, the Tribunal may continue the arbitration.

 

Article 19: Seat of Arbitration

1.     The parties may agree on the Seat of Arbitration.

Absent such an agreement, the Seat of Arbitration shall be Hong Kong,unless the Tribunal determines that another seat is more appropriate in the circumstances after consulting with the parties.

2.     The Tribunal may hold hearings and meetings at any location outside the Seat of Arbitration and by any means that it considers appropriate.

3.     Any award shall be deemed to have been made at the Seat of Arbitration.

 

Article 20: Language of Arbitration

1.     The parties may agree on the language of the arbitration.

Absent such an agreement, the language of the arbitration shall be either Mandarin Chinese or English in accordance with CAA-HK’s notification of preliminary decision on language under Article 7.2, unless the Tribunal determines that another language(s) is more appropriate in the circumstances after consulting with the parties.

2.     The language of the arbitration shall apply toany written submissions, including Statement of Claim, Statement of Defence, any amendment and supplement, and any hearings, as well as to any awards, decisions or other written communications made by the Tribunal.

3.     For any submissions or documents using a language different from the language of the arbitration, the Tribunal, or CAA-HK if before the Tribunal’s constitution, may require translation in a form to be determined by the Tribunal or CAA-HK.

 

Article 21: Statement of Claim

1.     Unless contained in its Notice of Arbitration, the Claimant shall submit a Statement of Claim to the Tribunal and all other parties within the time limit to be determined by the Tribunal.

2.     The Statement of Claim shall include the following items:

(a)   a statement of the facts supporting the claim;

(b)  the points at issue;

(c)   the legal grounds or arguments supporting the claim;

(d)  the relief or remedy claimed and any quantification of amount;

(e)   the parties’ names and contact details including postal and email addresses, telephone and facsimile numbers; and

(f)   all accompanying documents which the Claimant relies on and which have not been submitted by any party.

3.     The requirements in this Article are subject to any change that the Tribunal considers appropriate.

 

Article 22: Statement of Defence

1.     Unless contained in its Answer to Notice of Arbitration, the Respondent shall submit a Statement of Defence to the Tribunal and all other parties within thetime limit to be determined by the Tribunal.

2.     The Statement of Defence should respond to the items in the Statement of Claim as required by Article 21.2.

3.     The Statement of Defence shall also contain the factual and legal grounds for any objection to the Tribunal’s jurisdiction or constitution.

4.     If the Respondent makes or has made a counterclaim or set-off defence, the Statement of Defence shall also include the following items:

(a)   a statement of the facts supporting the counterclaim or set-off defence;

(b)  the points at issue;

(c)   the legal grounds or arguments supporting the counterclaim or set-off defence;

(d)  the relief or remedy claimed and any quantification of amount; and

(e)   all accompanying documents which the Respondent relies on and which have not been submitted by any party.

5.     The requirements in this Article are subject to any change that the Tribunal considers appropriate.

 

Article 23: Amendments or Supplements

1.     Any party may amend or supplement its claim or defence during the arbitration, unless the Tribunal considers such amendment or supplement inappropriate in the circumstances.

2.     The Tribunal may require any further written submissions from the parties and shall determine the time limits for such submissions.

 

Article 24: Evidence and Hearings

1.      The Tribunal shall determine the admissibility, relevance, materiality and weight of any evidence, including whether to apply strict rules of evidence.

The Tribunal may admit or exclude any documents, exhibits or other evidence.

2.      The Tribunal may allow or require any party to produce documents, exhibits or other evidence that the Tribunal determines to be relevant to the case and material to its outcome.

The Tribunal shall give all parties reasonable advance notice in writing of any hearing or meeting for the purposes of inspecting documents, goods, other property or evidence.

3.      Unless the parties agree otherwise, the Tribunal shall decide whether to hold hearings for the presentation of evidence or oral argument, or whether the arbitration shall be conducted on the basis of documents and written submissions only.

The Tribunal may hold such hearings at appropriate stages of the arbitration upon any party’s request or on its own initiative.

4.      Any expert, whether appointed by the parties or the Tribunal, shall be a natural person or represented by natural person(s).

5.      Witnesses and experts who are presented by the parties to testify to the Tribunal on any issues of fact or expertise may be any individual, even if that individual is a party to the arbitration or in any way related to a party.

If any witnesses or experts are to be heard, a party shall notify the Tribunal and all other parties the names and addresses of the witnesses or experts it intends to present, the subject upon and the language in which such witnesses or experts will give their testimony, within the time limit agreed by the parties or determined by the Tribunal.

6.      The Tribunal may determine the order and manner in which witnesses or experts are questioned.

7.      The Tribunal may require the retirement of any witness or expert who is not a party to the arbitration during the testimony of other witnesses or experts.

8.      Hearings shall be held in private unless the parties agree otherwise.

 

Article 25: Tribunal’s Appointment of Experts

1.         Unless the parties agree otherwise, the Tribunal may:

(a)   appoint one or more experts on specific issues; and

(b)  require any party to produce or provide such experts with access to any relevant documents, goods or property for inspection.

The Tribunal shall establish terms of reference for the Tribunal-appointed expert, and shall provide a copy of such terms of reference to all parties and CAA-HK.

2.         Any Tribunal-appointed expert shall submit to the Tribunal, all parties and CAA-HK a statement of his or her qualifications, impartiality and independence before accepting appointment.

The parties may object to the expert’s qualifications, impartiality or independence within the time limit required by the Tribunal, and the Tribunal shall promptly decide whether to accept such objection.

After the expert’s appointment, the parties may object to the expert’ qualifications, impartiality or independence only for reasons of which they become aware after such appointment. The Tribunal shall promptly decide whether to take any actions.

3.         Any Tribunal-appointed expert shall submit a report in writing to the Tribunal (“expert’s report”).

Upon receiving the expert’s report, the Tribunal shall provide a copy to all parties and invite the parties to submit written comments on such report.

4.         After the Tribunal provides the expert’s report to all parties via CAA-HK, any Tribunal-appointed expert shall, at any party’s request, attend a hearing at which the parties shall have the opportunity to question the expert, and the parties may present other experts to testify on the points at issue.

 

Article 26: Interim Measures

1.     Before the Tribunal’s constitution, a party may apply to an Emergency Arbitrator for Emergency Measures under Schedule 1, unless the parties agree otherwise.

2.     After the Tribunal’s constitution, a party may apply to the Tribunal for Interim Measures under this Article, unless the parties agree otherwise.

3.     The Tribunal may grant Interim Measures in an order or another form at any time before issuing the final award. For example and without limitation, Interim Measures may require a party to:

(a)   maintain or restore the status quo pending determination of the dispute;

(b)  take action that would prevent, or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process;

(c)   provide means of preserving assets out of which a subsequent award may be satisfied; or

(d)  preserve evidence that may be relevant and material to the determination of the dispute.

4.     When deciding a party’s request for Interim Measures, the Tribunal shall consider the following:

(a)   whether harm that is irreparable or cannot be adequately compensated is likely to result if the measure is not granted;

(b)  whether such harm substantially outweighs the harm that is likely to result to the party affected by the measure if the measure is granted; and

(c)   whether there is a reasonable possibility that the requesting party will succeed on the merits, provided that any determination on this possibility shall not affect the Tribunal’s discretion in making any subsequent determination.

5.     The Tribunal may require the requesting party to provide appropriate security in connection with the measure.

6.     The Tribunal may require any party to promptly disclose any material change in the circumstances based on which the measure was requested or granted.

7.     The Tribunal may modify, suspend or terminate any measure it has granted upon any party’s request, or on the Tribunal’s own initiative with advance notice to the parties in exceptional circumstances.

8.     The requesting party may be liable for any costs or damages caused by the measure to any party if the Tribunal later determines that the measure should not have been granted in the circumstances then prevailing. The Tribunal may award such costs or damages at any time during the arbitration.

9.     A party may apply to a court or other competent authority for:

(a)   relief similar to Emergency Measures before the Tribunal’sconstitution;

(b)  relief similar to Interim Measures after the Tribunal’sconstitution in exceptional circumstances; or

(c)   the implementation of any Emergency Measures granted by Emergency Arbitrator under Schedule 1 or any Interim Measures granted by the Tribunal under this Article 26.

These applications shall not be deemed an infringement or a waiver of the arbitration agreement, and they shall not affect the relevant powers reserved to the Tribunal.

The party making any of these applications shall promptly notify all other parties, CAA-HK, the Tribunal or Emergency Arbitrator of such application in writing.

 

Article 27: Joinder of Additional Party 

1.     The Tribunal may join one or more parties (“Additional Party”) to an arbitration if:

(a)   the Additional Party is bound by an arbitration agreement giving rise to the arbitration under the Rules; or

(b)  all existing parties and the Additional Party have consented to the joinder of the Additional Party.

2.     The Tribunal’s decision on joinder is without prejudice to its power to subsequently decide any question as to its jurisdiction arising from such decision.

3.     An existing party wishing to join an Additional Party, or a third party wishing to be joined as an Additional Party, may submit a Request for Joinder and pay a non-refundable fee of USD 2,500.00 to CAA-HK. The Request for Joinder shall include the following items:

(a)   case reference of the existing arbitration;

(b)  the names, postal and email addresses, telephone and facsimile numbers of the parties including the Additional Party;

(c)   a request that the Additional Party be joined to the arbitration, with supporting statement of facts and legal arguments;

(d)  a reference to, and a copy of, the contract(s) or other legal instrument(s) out of which or in relation to which the request arises;

(e)   the points at issue;

(f)   the relief or remedy claimed; and

(g)  confirmation that copies of the Request for Joinder and any accompanying documents have been or are being served simultaneously on all other parties and the Tribunal(s) by the means of service specified in such confirmation.

4.     Within 15 days of receiving the Request for Joinder, the other existing party to the arbitration and/or the third party may submit an Answer to Request for Joinder to CAA-HK, which shall include the following items:

(a)   the names, postal and email addresses, telephone and facsimile numbers of the party and its representative that are different from the description in the Request for Joinder;

(b)  any objection to the Tribunal’s jurisdiction over the Additional Party;

(c)   any response to the relief or remedy claimed in the Request for Joinder;

(d)  any comment in response to the other items in the Request for Joinder as required by Article 27.3;

(e)   the details of any claims against any other party to the arbitration; and

(f)   confirmation that copies of the Answer to Request for Joinder and any accompanying documents have been or are being served simultaneously on all other parties and the Tribunal(s) by the means of service specified in such confirmation.

5.     An existing party or third party who does not submit an Answer to Request for Joinder within 15 days of receiving the Request for Joinder is deemed to have waived its right to object to, or comment on, the Request for Joinder.

6.     The Tribunal shall make a decision on joinder within 20 days of receiving any Answer to the Request for Joinder or, in the absence of any Answer to the Request for Joinder, within 30 days of receiving the Request for Joinder.

7.     If CAA-HK receives a Request for Joinder before the Tribunal’sconstitution, CAA-HK may decide whether, prima facie, the Additional Party is bound by an arbitration agreement giving rise to the arbitration under the Rules, including any arbitrations consolidated under Article 28 or commenced under multiple contracts under Article 9.

The other existing party to the arbitration and/or third party may submit an Answer to Request for Joinder to CAA-HK in accordance with Article 27.4.

CAA-HK shall make a decision on joinder within 30 days of receiving the Request for Joinder, and such decision is without prejudice to the admissibility or merits of any party’s objection.

8.     The Tribunal, once constituted, shall decide any question as to its jurisdiction arising from CAA-HK’s decision on joinder under Article 27.7.

9.     If an Additional Party is to be joined to the arbitration, the arbitration in respect of the Additional Party is deemed to commence on the date when CAA-HK receives the Request for Joinder.

(a)   If the Additional Party is joined to the arbitration before the Tribunal’sconstitution, all parties to the arbitration are deemed to have waived their right to appoint an arbitrator unless all parties agree on the arbitrators already appointed, and CAA-HK shall revoke the appointment of any arbitrator(s) appointed and appoint the arbitrator(s).

(b)  If the Additional Party is joined to the arbitration after the Tribunal’sconstitution, the Tribunal shall continue the arbitration.

10.  CAA-HK’s revocation of an arbitrator’s appointment under Article 27.9(a) is without prejudice to:

(a)   the validity of any act done or order made by the arbitrator before his or her appointment is revoked; and

(b)  the arbitrator’s entitlement to the fees and expenses subject to the Rules.

11.  The parties waive any objection, on the basis of any decision to join an Additional Party to the arbitration, to the validity and/or enforcement of any award made by the Tribunal in the arbitration, to the extent that such waiver can be validly made.

12.  CAA-HK may adjust the Tribunal’s fees, where appropriate, after receiving a Request for Joinder.

 

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