Article 28: Consolidation of Arbitrations

1.         Upon a party’s request CAA-HK may decide to consolidate two or more arbitrations pending under the Rules into a single arbitration that it considers proper and appropriate if:

(a)   the parties have agreed to the consolidation; 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.

2.         The requesting party shall submit a Request for Consolidation to CAA-HK together with payment of a non-refundable application fee of USD 2,500.00.

3.         The Request for Consolidation shall include the following items:

(a)   case references of the arbitrations to be consolidated;

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

(c)   a description of why consolidation of the arbitrations would be proper and appropriate, taking into account the constitution of the Tribunal(s), the progress of the cases, or the cost effectiveness of a consolidated proceeding;

(d)  a reference to the contract(s) or other legal instrument(s) out of or in relation to which the claims arise;

(e)   whether the parties agree to the consolidation; and

(f)   confirmation that copies of the Request for Consolidation 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.         CAA-HK shall make a decision on consolidation within 20 days of receiving the Request for Consolidation.

5.         Arbitrations shall be consolidated into the arbitration that commenced first, unless all parties agree otherwise.

6.         All parties shall jointly appoint the arbitrators for the consolidated arbitration within 15 days of being notified of CAA-HK’s decision to consolidate.

Failing such appointment, CAA-HK shall revoke the appointment of any arbitrators appointed and appoint the arbitrators and, if the Tribunal is to consist of three arbitrators, designate one of them as the presiding arbitrator.

7.         CAA-HK’s revocation of an arbitrator’s appointment under Article 28.6 is without prejudice to:

(a)   the validity of any act done or order made by the arbitrator before his or her appointment is revoked, provided that the acts done or orders made by the Tribunals before the consolidation are consistent;

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

(c)   the date when any claim or defence is raised for the purpose of applying any time limit or similar rule.

8.         The parties waive any objection, on the basis of CAA-HK’s decision to consolidate, to the validity and/or enforcement of any award made by the Tribunal in the consolidated proceedings, to the extent that such waiver can be validly made.

 

Article 29: Default

1.         The Tribunal may proceed with the arbitration and make an award on the basis of the evidence before it if any party, without sufficient cause, fails to:

(a)   provide the Statement of Defence or any other written submissions;

(b)  appear at hearings;

(c)   produce documentary or other evidence; or

(d)  otherwise present its case in accordance with the Rules or in the manner directed by the Tribunal.

2.         If the Claimant, without sufficient cause, fails to provide its Statement of Claim in accordance with the Rules or in the manner directed by the Tribunal, the Tribunal shall issue an order for terminating the arbitration, unless:

(a)   the parties agree otherwise;

(b)  any other party has brought a counterclaim or set-off defence and wishes the arbitration to continue; or

(c)   the Tribunal considers it appropriate to decide any related matters.

 

Article 30: Closure of Proceedings

1.     Within six months from the date of its constitution, the Tribunal shall declare the proceedings closed and state the date of such closure in writing.

CAA-HK may extend the time limit pursuant to the Tribunal’s reasoned request or on its own initiative if it decides necessary to do so.

2.     After the closure of proceedings, any party shall not produce any further evidence or make any further submissions without the Tribunal’s authorisation or request through reopening the proceedings.

3.     The Tribunal may reopen the proceedings upon a party’s request or on its own initiative before making its final award.

 

Article 31: Applicable Law and Amiable Compositeur

1.         The Tribunal shall apply the law or rules of law agreed by the parties as applicable to the substance of the dispute.

2.         Absent such an agreement, the Tribunal shall apply the law or rules of law which it determines to be appropriate.

3.         The Tribunal shall decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorised it to do so.

4.         In all cases, the Tribunal shall decide in accordance with the terms of any relevant contracts, and shall take into account any applicable trade usages or industry practices.

 

Article 32: Decision-Making by Tribunal

1.         Where there is more than one arbitrator, the Tribunal shall make any award, order or other decision by a majority of all the arbitrators.

2.         Absent a majority consensus, the presiding arbitrator shall make the award, order or other decision.

3.         The presiding arbitrator alone may decide procedural questions with the consent of all parties.

 

Article 33: Time Limit for Award-Making

1.     The Tribunal shall make its final award within six weeks from the date of its closure of proceedings as stated in accordance with Article 30.1. Such award shall be signed and dated in accordance with Article 34.2.

2.     The calculation of the award-making period shall exclude any period(s) during which the arbitration is suspended under the Rules.

3.     CAA-HK may extend the time limit pursuant to the Tribunal’s reasoned request or on its own initiative if it decides necessary to do so.

 

Article 34: Requirements and Effect of Awards

1.         The Tribunal may make a single award or separate awards on different issues at different times in the form of interim, interlocutory, partial or final award.

2.         Any award shall be made in writing and shall contain the following:

(a)   the date on which the award is made;

(b)  the Seat of Arbitration;

(c)   the reasons of the award, unless the parties agree otherwise, or the award is a consent award; and

(d)  the signatures of the majority of arbitrators.

3.         Upon full settlement of the Costs of Arbitration, the Tribunal shall provide copies of the signed award to all parties and CAA-HK.

4.         Any award shall be final and binding on all parties from the date on which it is made.

The parties shall carry out any award promptly or within any time limit specified in the award.

 

Article 35: Settlement

1.     If the parties settle their dispute before the Tribunal makes the final award, the Tribunal may record the settlement in the form of a consent award upon the parties’ request.

Article 34 shall apply to such an award, which shall have the same status and effect as any other award on the merits.

2.     If the parties do not request such an award, the Tribunal shall make an order for terminating the arbitration signed by all arbitrators under Article 36, and provide CAA-HK with a copy of such order.

 

Article 36: Termination of Arbitration

1.     The arbitration is terminated by:

(a)   the Tribunal’s final award;

(b)  the parties’ settlement; or

(c)   the Tribunal’s order for terminating the arbitration (“Termination Order”) in accordance with this Article.

2.     The Tribunal shall inform the parties of its intention to issue a Termination Order when:

(a)   the parties agree on the termination of the arbitration;

(b)  the Claimant withdraws its claim; or

(c)   the Tribunal finds that the continuation of the arbitration has become unnecessary or impossible for any other reason.

3.     The Tribunal shall issue such Termination Order unless:

(a)   a party raises a justifiable objection and the Tribunal recognises that party’s legitimate interest in obtaining a final settlement of the dispute; or

(b)  the Tribunal considers it necessary or appropriate to decide any remaining matters. 

4.     The Tribunal shall provide copies of its Termination Order signed by all arbitrators to all parties and CAA-HK.

 

Article 37: Correction and Interpretation of Awards

1.     Within 30 days of receiving the award, a party may, with written notice to all other parties, request the Tribunal to:

(a)   correct in the award any error in computation, any clerical or typographical error, or any error, ambiguity or omission of a similar nature; or

(b)  give an interpretation of a specific point or part of the award.

2.     Any other party may comment on such request for correction or interpretation within 15 days of receiving the request.

3.     If the Tribunal considers the request to be justified, it shall make correction or give interpretation within 30 days of receiving such request.

4.     Within 30 days of the date of the award, the Tribunal may correct any error of the type referred to in Article 37.1(a) on its own initiative after consulting with the parties.

The Tribunal may make any further correction to the award or any further interpretation of the award which is necessitated by or consequential on:

(a)   the interpretation of any point or part of the award or the correction of any error in the award under this Article; or

(b)  the issue of any additional award under Article 38.

5.     CAA-HK may extend the time limit for the Tribunal to make correction or give interpretation.

6.     Any correction, made in the original award or in a separate memorandum, shall form part of the award. Any interpretation shall also form part of the award.

Article 34 shall apply in the same manner with any necessary changes in relation to any correction or interpretation of the award.

 

Article 38: Additional Awards

1.     Within 30 days of receiving the award, a party may, with written notice to all other parties, request the Tribunal to make additional award as to any claim(s) presented in the arbitration but omitted from the award.

2.     Any other party may comment on such request within 15 days of receiving the request.

3.     If the Tribunal considers the request to be justified, it shall make additional award within 60 days of receiving such request.

4.     CAA-HK may extend the time limit for the Tribunal to make additional award.

5.     Within 30 days of the date of the award, the Tribunal may make additional award on its own initiative after consulting with the parties.

The Tribunal may make any additional award which is necessitated by or consequential on the correction or interpretation of the award under Article 37.

6.     Article 34 shall apply in the same manner with any necessary changes in relation to any additional award.

 

Article 39: Confidentiality

1.     Unless the parties agree otherwise, no party may publish, disclose or communicate any information not already in the public domain relating to:

(a)   the arbitration under the arbitration agreement(s), including the existence of arbitration and identity of arbitrators; and

(b)  any award(s) made in the arbitration.

Such confidentiality also applies to any arbitrator, Emergency Arbitrator, expert, witness, Tribunal’s secretary and CAA-HK.

2.     This Article does not prevent a party’s publication, disclosure or communication of the information (specified in Article 39.1) to:

(a)    any court or other competent authority in proceedings for protecting or pursuing that party’s legal right or interest, or for enforcing or challenging any award;

(b)   any government or regulatory body, court or other authority where that party is obliged by law to make the publication, disclosure or communication;

(c)    any of the parties’ professional and other advisers, including any actual and potential witnesses and experts; and

(d)   any third party for the purpose of any application for joinder of Additional Party under Article 27 or consolidation of arbitrations under Article 28.

3.     The deliberations of the Tribunal, including any recordings, transcripts or documents used in relation to the arbitration, shall remain confidential.

4.     An award may be published, whether in its entirety or in the form of excerpts or summary, only if:

(a)   a request for publication is made to CAA-HK;

(b)  all references to the parties’ names and other identifying information are omitted; and

(c)   none of the parties objects to such publication within the time limit required by CAA-HK.

5.     The Tribunal may take appropriate measures against any party in breach of this Article, including issuing an order or award for sanctions or costs.

Upon any party’s request, the Tribunal may make orders concerning the confidentiality of the arbitration and may take measures for protecting trade secrets or confidential information.

 

Article 40: Exclusion of Liability

1.   CAA-HK (including its committees, sub-committees, directors, officers, employees, members and other designated persons), any arbitrator, Emergency Arbitrator, Tribunal-appointed expert or Tribunal’s secretary shall not be liable to any person for any act or omission in connection with any arbitration conducted under the Rules, except where such act or omission constitutes wilful misconduct.

2.   After a final award is made and all possibilities of correction, interpretation and additional awards have lapsed or been exhausted, CAA-HK (including its committees, sub-committees, directors, officers, employees, members and other designated persons), any arbitrator, Emergency Arbitrator, Tribunal-appointed expert or Tribunal’s secretary shall not be under any obligation to make any statement to any person about any matter concerning the arbitration.

3.   A party shall not seek to make any of these persons a witness in any legal or other proceedings arising out of or in connection with the arbitration.

 

Article 41: Expedited Procedure

1.         Before the Tribunal’s constitution, a party may apply to CAA-HK in writing to conduct the arbitration in accordance with the Expedited Procedure in Article 41.4 if:

(a)   the amount in dispute is less than USD 250,000.00;

(b)  the parties so agree; or

(c)   in cases of exceptional urgency.

2.         Unless the parties agree otherwise, the Expedited Procedure shall not apply to any arbitration consolidated under Article 28 or commenced under multiple contracts under Article 9.

3.         CAA-HK shall consider the views of all parties in deciding whether to grant such an application.

4.         The arbitration shall be conducted by Expedited Procedure, which is based upon the Rules but subject to the following changes:

(a)   CAA-HK may shorten any time limits under the Rules;

(b)  The case shall be referred to a sole arbitrator, unless the arbitration agreement provides for three arbitrators;

(c)   If the arbitration agreement provides for three arbitrators, CAA-HK shall invite the parties to agree to refer the case to a sole arbitrator. If the parties do not agree, the case shall be referred to three arbitrators;

(d)  The Tribunal may, after consulting with the parties, decide if the dispute is to be decided on the basis of documentary evidence only, or if a hearing is required for any oral argument or for the examination of any witness and expert;

(e)   The Tribunal shall make its final award within six weeks from the date of its closure of proceedings. CAA-HK may extend this time limit only once in exceptional circumstances; and

(f)   The Tribunal shall state the reasons upon which the award is based in summary form, unless the parties agree otherwise.

 

Article 42: Deposit for Costs

1.         As soon as practicable after the Respondent receives of the Notice of Arbitration, CAA-HK shall determine the amount of Deposit for Costs, which includes CAA-HK’s administrative fees determined in accordance with Article 45 and other necessary expenses, as well as the Tribunal’s fees and expenses.

The Tribunal, once constituted, shall confirm the amount of Deposit of Costs determined by CAA-HK.

2.         CAA-HK shall request the Claimant and the Respondent to each pay one-half of the Deposit for Costs.

Unless CAA-HK otherwise deems acceptable, any amount paid by each party must be paid from the party’s account.

3.         CAA-HK may request separate deposits if the Respondent submits a counterclaim, or if it considers otherwise appropriate in the circumstances.

4.         During the arbitration CAA-HK may request the parties to make supplementary deposits that it considers necessary.

The Tribunal may inform CAA-HK if further deposits are required, such as when additional hours have been incurred.

5.         If the required deposits are not paid in full to CAA-HK within 30 days after the parties receive the request for payment, CAA-HK shall inform the parties and order one of them to make the required deposits.

If such payment is not made, CAA-HK or the Tribunal may order the suspension or termination of the arbitration, or continue the arbitration on such basis and in respect of such claim or counterclaim as CAA-HK or the Tribunal considers appropriate.

6.         The Tribunal shall, in its final award, render an account to the parties of the deposits received by CAA-HK.

7.         CAA-HK shall place the deposits made by the parties in interest bearing deposit account(s) at reputable licensed deposit-taking institutions.

In selecting the account(s), CAA-HK shall have due regard to the possible need to make the deposited funds available immediately.

8.         If the parties settle their dispute or if the arbitration is terminated, CAA-HK may return the unused portion of the Deposit for Costs.

9.         The parties are jointly and severally liable for Deposit for Costs.

 

Article 43: Costs of Arbitration

1.         As soon as the Tribunal is constituted or an Additional Party is joined or the arbitrations are consolidated, the Tribunal shall determine and confirm the amount in dispute for the purpose of determining the amount of CAA-HK’s administrative fees and the Tribunal’s fees.

The Tribunal shall promptly inform CAA-HK of its determination for CAA-HK to make any refund or to request additional Deposit for Costs.

2.         The Tribunal shall determine the Costs of Arbitration, which shall include the following items:

(a)   the Tribunal’s fees as determined in accordance with Article 44;

(b)  the reasonable travel and other expenses incurred by the Tribunal;

(c)   the reasonable costs of expert advice and other assistance required by the Tribunal;

(d)  the reasonable travel and other expenses of witnesses and experts;

(e)   the reasonable costs for legal representation and assistance if such costs were claimed during the arbitration; and

(f)   CAA-HK’s administrative fees and other fees, including but not limited to the fees for appointing and challenging arbitrators, consolidation or joinder of additional party, the costs of Interim Measures and Emergency Proceedings paid to CAA-HK (under Schedule 1 Section 9).

3.         The Tribunal may apportion all or part of the Costs of Arbitration between the parties if it determines that apportionment is reasonable in the circumstances.

4.         The Tribunal may make an order requiring a party to provide security for the Costs of Arbitration.

5.         If arbitrations are consolidated under Article 28, the Tribunal in the consolidated arbitration shall allocate the Costs of Arbitration. Such costs shall include, but shall not be limited to, the fees of any arbitrators appointed, and any other costs incurred in an arbitration that was subsequently consolidated into another arbitration.

6.         If the Tribunal issues a Termination Order under Article 36 or makes an award on agreed terms under Article 35, the Tribunal or CAA-HK shall determine the Costs of Arbitration in that order or award.

7.         The Tribunal may award simple or compound interest on any sum which is the subject of the arbitration at such rates as the parties have agreed or, in the absence of such agreement, as the Tribunal determines to be appropriate, in respect of any period which the Tribunal determines to be appropriate.

 

Article 44: Tribunal’s Fees and Expenses

1.     The Tribunal’s fees shall be determined pursuant to either Schedule 2 (Hourly Rate) or Schedule 3 (Amount in Dispute).

The parties shall agree on using either Schedule 2 or Schedule 3 for determining the Tribunal’s fees, and shall inform CAA-HK of their agreement within 30 days after the Respondent receives the Notice of Arbitration.

Failing such an agreement, the Tribunal’s fees shall be determined pursuant to Schedule 3 (Amount in Dispute).

2.     If the Tribunal’s fees are to be determined pursuant to Schedule 2 (Hourly Rate), the applicable hourly rate for each arbitrator shall be the rate as agreed between that arbitrator and the parties, which shall not exceed the maximum hourly rate of USD 550.00.

CAA-HK shall determine the presiding arbitrator’s hourly rate.

If the parties and the arbitrator cannot agree on the hourly rate within 20 days after the arbitrator’s appointment, CAA-HK shall determine the hourly rate, which shall not exceed the maximum hourly rate of USD 550.00.

3.     CAA-HK shall consider the following criteria when determining an arbitrator’s hourly rate:

(a)   the amount in dispute;

(b)  the complexity of the subject matter of the arbitration;

(c)   the time spent by the Tribunal;

(d)  the fees shall be reasonable in amount; and

(e)   any other circumstances including, but not limited to, the discontinuation of the arbitration because of settlement or any other reason.

4.     The Tribunal shall be reimbursed for its necessary or reasonable expenses incurred, such as travel, meals and accommodation.

 

 

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

1.     CAA-HK’s administrative fees are based on the amount in dispute, and shall be determined pursuant to the following table.

Amount in Dispute (in USD)

Administrative Fees (in USD)

Up to 220,000

3,100

From 220,001 to 300,000

3,100 + 0.780% of amt. over 220,000

From 300,001 to 450,000

3,724 + 0.750% of amt. over 300,000

From 450,001 to 750,000

4,849 + 0.670% of amt. over 450,000

From 750,001 to 1,500,000

6,859+ 0.380% of amt. over 750,000

From 1,500,001 to 3,000,000

9,709+ 0.220% of amt. over 1,500,000

From 3,000,001 to 6,000,000

13,009 + 0.150% of amt. over 3,000,000

From 6,000,001 to 12,000,000

17,509 + 0.080% of amt. over 6,000,000

From 12,000,001 to 30,000,000

22,309 + 0.052% of amt. over 12,000,000

From 30,000,001 to 56,770,000

31,669 + 0.404% of amt. over 30,000,000

Over 56,770,001

42,377

2.     Claims and counterclaims are aggregated when determining the amount in dispute.

The same applies to any set-off defence, unless the Tribunal decides otherwise.

3.     In cases of joinder of Additional Party under Article 27 or consolidation of arbitrations under Article 28, the amounts of claims and counterclaims are aggregated or set-off when determining the amount in dispute.

4.     Any interest claim shall not be taken into account when determining the amount in dispute.

However, if the interest claim exceeds the amounts claimed in principal, the interest claim alone shall be considered in determining the amount in dispute.

5.     If the amount in dispute is not quantified, CAA-HK’s administrative fees shall be determined by CAA-HK and confirmed by the Tribunal, taking into account the circumstances of the case.

6.     If CAA-HK is requested to appoint an arbitrator on behalf of the parties, a fee of USD 1,500.00 shall apply to each of the appointment made by CAA-HK.

7.     CAA-HK’s administrative fees and filing fees may be subject to value added tax or other charges.

 

Article 46 – Currency

Amounts in currencies other than United States Dollars (USD) shall be converted into USD at the rate of exchange published by the Hongkong Shanghai Banking Corporation Limited (HSBC) on the date of submitting the Notice of Arbitration, or submitting any new claim, set-off defence or amendment to a claim or defence.

 

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