Schedule 1 – Emergency Arbitrator and Emergency Measures

Section 1: Application for Emergency Measures

1.         This Schedule shall not apply if:

(a)   the arbitration agreement was concluded before the Rules came into force; or

(b)  the parties have agreed to opt out of this Schedule.

2.         A party may, concurrent with or after the submission of a Notice of Arbitration but before the Tribunal’sconstitution, submit to CAA-HK an application for urgent measures to be granted by an Emergency Arbitrator (“Application for Emergency Measures”).

3.         The Application for Emergency Measures shall be submitted in accordance with any of the means specified in Article 5.2 of the Rules, and shall include the following items:

(a)   the names and any known postal and email addresses, telephone and facsimile numbers of the parties and any representatives;

(b)  a description of the circumstances giving rise to the Application for Emergency Measures and of the underlying dispute referred to arbitration;

(c)   a statement of the Emergency Measures sought, including the reasons why the applicant needs and is entitled to such measures on an urgent basis that cannot await the Tribunal’sconstitution;

(d)  the arbitration agreement(s) and other relevant agreement(s);

(e)   any comments on the language, applicable law and seat of the proceedings for Emergency Measures (“Emergency Proceedings”);

(f)   confirmation of payment to CAA-HK of the “Application Deposit” (as specified in Section 8 of this Schedule); and

(g)  confirmation that copies of the Application for Emergency Measures and any accompanying documents have been or are being served simultaneously on all other parties, the Emergency Arbitrator and CAA-HK by the means of service specified in such confirmation.

4.         The Application for Emergency Measures may contain such other information or documents as the party submitting such Application considers appropriate or as may contribute to the efficient examination of the Application.

5.         The party submitting the Application for Emergency Measures shall promptly notify CAA-HK, all other parties and the Emergency Arbitrator (once appointed) of any application for measures similar to Emergency Measures made to a court or other competent authority.

Section 2: Appointment of Emergency Arbitrator

1.     If CAA-HK decides to accept the Application for Emergency Measures, CAA-HK shall appoint an Emergency Arbitrator within two days after receiving both the Application for Emergency Measures and the Application Deposit.

2.     Once the Emergency Arbitrator is appointed, CAA-HK shall notify the parties about such appointment and shall transmit the file to the Emergency Arbitrator.

After CAA-HK’s notification and transmission of file, any party shall submit all written communications directly to the Emergency Arbitrator with copies to the other parties and CAA-HK. The Emergency Arbitrator shall also give CAA-HK copies of its written communications to the parties.

3.     Unless the parties agree otherwise, the Emergency Arbitrator may not act as an arbitrator in the Tribunal in any arbitration relating to the dispute that gave rise to the Application for Emergency Measures and in respect of which the Emergency Arbitrator has acted.

4.     The Emergency Arbitrator shall have no further power to act once the Tribunal is constituted. This is subject to the Emergency Arbitrator’s power to make Emergency Decision under Section 7 of this Schedule even if the file has been transmitted to the Tribunal in the meantime.

Section 3: Challenge and Replacement of Emergency Arbitrator

1.     Article 14 and Article 16 of the Rules shall apply to the qualifications and challenge of Emergency Arbitrator, except that the time limits in Article 16.2 and 16.4 are shortened to three days.

2.     In the event of an Emergency Arbitrator’s death, resignation, withdrawal or removal, CAA-HK shall appoint a substitute Emergency Arbitrator within two days of such an event.

If the Emergency Arbitrator is replaced, the Emergency Proceedings shall resume at the stage where the Emergency Arbitrator was replaced or ceased to perform his or her functions, unless the substitute Emergency Arbitrator decides otherwise.

Section 4: Seat of Emergency Proceedings

1.     If the parties have agreed on the Seat of Arbitration, such seat shall be the seat of Emergency Proceedings.

2.     If the parties have not agreed on the Seat of Arbitration, and without prejudice to the Tribunal’s determination of Seat of Arbitration under Article 19 of the Rules, the seat of Emergency Proceedings shall be Hong Kong.

Section 5: Language of Emergency Proceedings

1.     If the parties have agreed on the language of arbitration, such language shall be the language of Emergency Proceedings.

2.     If the parties have not agreed on the language of arbitration, CAA-HK shall determine the language of Emergency Proceedings.

Section 6: Conduct of Emergency Proceedings

1.     The Emergency Arbitrator shall, within two days of his or her appointment, establish a schedule considering the Application for Emergency Measures.

2.     The Emergency Arbitrator may conduct the Emergency Proceedings in such manner as he or she considers appropriate, taking into account the urgency inherent in such proceedings and ensuring that each party has a reasonable opportunity to be heard on the Application for Emergency Measures.

3.     The Emergency Arbitrator may rule on his or her own jurisdiction, including any objections to the existence, validity, effectiveness, scope or termination of arbitration agreement(s), or to the applicability of this Schedule.

4.     The Emergency Arbitrator may dismiss the Application for Emergency Measures and terminate the Emergency Proceedings, if he or she considers that the requested Emergency Measures are unnecessary or unable to be granted.

5.     For all matters not expressly provided for in this Schedule, the Emergency Arbitrator shall act in the spirit of the Rules.

Section 7: Decision on Emergency Measures

1.     When deciding a party’s request for Emergency Measures, the Emergency Arbitrator 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.

2.     The Emergency Arbitrator may require the requesting party to provide appropriate security.

3.     The Emergency Arbitrator may grant any Emergency Measures that he or she considers necessary and on such terms as he or she considers appropriate.

The Emergency Arbitrator may make preliminary orders pending any hearing, telephone or video conference or written submissions by the parties.

4.     Any decision, order or award of the Emergency Arbitrator (“Emergency Decision”) shall be made within 15 days from the date when CAA-HK transmitted the file to the Emergency Arbitrator, unless this time limit is extended by the parties’ agreement or by CAA-HK in appropriate circumstances.

5.     No interim order or award shall be made by the Emergency Arbitrator until it has been approved by CAA-HK as to its form.

6.     An Emergency Decision shall be made in writing and shall be signed by the Emergency Arbitrator. It shall contain the following:

(a)   the date on which the Emergency Decision is made;

(b)  reasons in summary form upon which the Emergency Decision is based (including whether the Application for Emergency Measures complies with Article 26(1) of the Rules and Section 1 of this Schedule, and whether the Emergency Arbitrator has jurisdiction to grant Emergency Measures); and

(c)   the Costs of Emergency Proceedings in accordance with Section 9 of this Schedule.

7.     The Emergency Arbitrator shall promptly provide copies of the signed Emergency Decision to all parties and CAA-HK.

The Emergency Arbitrator shall make every reasonable effort to ensure that the Emergency Decision is valid.

8.     Any Emergency Decision shall have the same effect as Interim Measures granted by the Tribunal under Article 26 of the Rules, and shall be binding on the parties when granted.

The parties shall comply with any Emergency Decision promptly or within any specified time limit.

The parties also irrevocably waive their rights to any form of appeal, review or recourse to any court or other competent authority with respect to any Emergency Decision, to the extent that such waiver can be validly made.

9.     Upon a party’s reasoned request, the Emergency Arbitrator or the Tribunal (once constituted) may modify, suspend or terminate any Emergency Decision.

The Emergency Arbitrator’s decision and reasons are not binding on the Tribunal.

10.  Any Emergency Decision ceases to be binding on the parties in any of the following circumstances:

(a)   the Emergency Arbitrator or the Tribunal so decides;

(b)  the Tribunal makes a final award, unless the Tribunal expressly decides otherwise;

(c)   all claims are withdrawn or the arbitration is terminated before the final award is made;

(d)  the Tribunal is not constituted within 90 days from the date of the Emergency Decision, unless extended by the parties’ agreement or by CAA-HK in appropriate circumstances;

(e)   the CAA-HK sustains a party’s challenge against the Emergency Arbitrator; or

(f)   the arbitration has been suspended for 60 consecutive days after the Tribunal’sconstitution.

Section 8: Application Deposit

1.     Application Deposit is the amount determined by CAA-HK and published on CAA-HK’s website on the date the Application for Emergency Measures is submitted, which consists of CAA-HK’s administrative fees and the Emergency Arbitrator’s fees and expenses as determined by CAA-HK on the basis of hourly rate under Schedule 2.

2.     CAA-HK may, at any time during the Emergency Proceedings, decide to increase the fees or expenses, taking into account the nature of the case, the nature and amount of work performed by it and the Emergency Arbitrator.

3.     If the party submitting the Application for Emergency Measures fails to pay the increased fees or expenses within the time limit required by CAA-HK, CAA-HK shall dismiss such Application.

Section 9: Costs of Emergency Proceedings

1.     The Costs of Emergency Proceedings include CAA-HK’s administrative fees, the Emergency Arbitrator’s fees and expenses, and the reasonable legal and other costs incurred by the parties because of the Emergency Proceedings.

2.     Any Emergency Decision shall state the amount of the Costs of Emergency Proceedings and decide which of the parties, or in what proportions the parties shall bear them, subject to the Tribunal’s power to determine finally the apportionment of such costs under Article 43 of the Rules.

 

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

Section1: Scope of Application and Interpretation

1.         This Schedule shall apply to arbitrations in which the Tribunal’s fees and expenses are to be determined on the basis of hourly rate, as well as to the Emergency Arbitrator’s fees and expenses payable under Schedule 1.

2.         CAA-HK may interpret this Schedule’s terms and scope of application as it considers appropriate.

3.         The hourly rate determined by CAA-HK shall be the rate in force on the date when the Notice of Arbitration or the Application for Emergency Measures is submitted.

Section2: Payments to the Tribunal

1.         CAA-HK shall make payments to the Tribunal from the parties’ Deposit for Costs (as specified in Article 42 of the Rules).

CAA-HK may direct the parties, in such proportions as it considers appropriate, to make one or more interim or final payments to the Tribunal.

2.         If the funds are insufficient at the time a payment is required, CAA-HK may invoice the parties for payment and settlement.

3.         Payments to the Tribunal shall be made in United States Dollars (USD) unless the Tribunal directs otherwise.

4.         The parties are jointly and severally liable for the Tribunal’s fees and expenses, irrespective of which party appointed which arbitrator.

Section3: Tribunal’s Expenses

1.         The Tribunal shall be reimbursed for its necessary or reasonable expenses as specified in Article 44.4 of the Rules.

2.         The Tribunal’s expenses shall not include the Tribunal’s fees determined on an hourly rate under Article 6 of this Schedule.

Section4: Fees and Expenses of the Replaced Arbitrators

1.         If an arbitrator is replaced, CAA-HK shall determine the amount of any fees and expenses to be paid to the replaced arbitrator, taking into account circumstances including, but not limited to, the applicable method for determining the replaced arbitrator’s fees, the work done by the replaced arbitrator in connection with the arbitration, and the complexity of the subject matter of the arbitration.

2.         The Tribunal retains the full right to request full payment of its hours spent if no award is made before the replacement of arbitrator.

Section5: Tribunal’s Hourly Rate

1.         An arbitrator shall be remunerated at an hourly rate for all work reasonably carried out in connection with the arbitration.

2.         An arbitrator shall agree in writing his or her hourly rate upon CAA-HK’s confirmation of his or her appointment.

3.         An arbitrator’s agreed hourly rate shall not exceed the rate determined by CAA-HK on the date when the Notice of Arbitration is submitted.

4.         Subject to this Section, an arbitrator may review and increase his or her agreed hourly rate by no more than 10% on each anniversary of CAA-HK’s confirmation of his or her appointment.

5.         Higher hourly rates may be charged if expressly agreed in writing by all parties, or if CAA-HK so determines in exceptional circumstances.

6.         If an arbitrator is required to travel in order to fulfil his or her obligations as an arbitrator, the arbitrator shall be entitled to charge and be reimbursed for:

(a)   the time spent on travelling but not working at a rate of 50% of the agreed hourly rate; and

(b)  the time spent on working whilst travelling at the full rate of the agreed hourly rate.

7.         Any cancellation or postponement of hearing days other than by agreement of all parties may be taken into account when considering any subsequent allocation of costs.

8.         Amounts paid to the arbitrator do not include any applicable taxes.

Section6: Lien on Award

CAA-HK and the Tribunal shall have a lien over any awards made by the Tribunal to secure the payment of any outstanding fees and expenses, and may refuse to release such awards to the parties until all the fees and expenses have been paid in full, whether jointly or by one of the parties.

Section7: Governing Law

The terms of this Schedule and any non-contractual obligations arising out of or in connection with them shall be governed by and construed in accordance with the law of Hong Kong.

 

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

Section1: Scope of Application and Interpretation

1.         This Schedule shall apply to arbitrations in which the Tribunal’s fees and expenses are to be determined on the basis of the amount in dispute, but shall not apply to any Emergency Arbitrator’s fees and expenses payable pursuant to Schedule 1.

2.         CAA-HK may interpret this Schedule’s terms and scope of application as it considers appropriate.

Section2: Payments to the Tribunal

1.         CAA-HK shall make payments to the Tribunal from the parties’ Deposit for Costs (as specified in Article 42 of the Rules).

CAA-HK may direct the parties, in such proportions as it considers appropriate, to make one or more interim or final payments to the Tribunal.

2.         If the funds are insufficient at the time a payment is required, CAA-HK may invoice the parties for payment and settlement.

3.         Payments to the Tribunal shall be made in United States Dollars (USD) unless the Tribunal directs otherwise.

4.         The parties are jointly and severally liable for the Tribunal’s fees and expenses, irrespective of which party appointed which arbitrator.

Section3: Tribunal’s Expenses

The Tribunal shall be reimbursed for its necessary or reasonable expenses as specified in Article 44.4 of the Rules.

Section4: Fees and Expenses of the Replaced Arbitrators

If an arbitrator is replaced, CAA-HK shall determine the amount of any fees and expenses to be paid to the replaced arbitrator, taking into account circumstances including, but not limited to, the applicable method for determining the replaced arbitrator’s fees, the work done by the replaced arbitrator in connection with the arbitration, and the complexity of the subject matter of the arbitration.

Section5: Tribunal’s Fees Based on Amount in Dispute

1.         The Tribunal’s fees shall be determined in accordance with the following table, in which each of the fees represents the minimum and maximum amounts payable to one arbitrator.

In determining fees, CAA-HK shall consider the time spent, complexity of the dispute, as well as the arbitrator’s diligence and efficiency. CAA-HK reserves the right to arrive at a figure within the limits prescribed below.

Minimum

Maximum

Amount in Dispute (USD)

Arbitrator’s Fees (USD)

Amount in Dispute (USD)

Arbitrator’s Fees (USD)

Up to 220,000

2,800

Up to 220,000

11,500

From 220,001 to 300,000

2,800 + 2.300% of amt. over 220,000

From 220,001 to 300,000

11,500 + 8.500% of amt. over 220,000

From 300,001 to 450,000

4,640 + 2.000% of amt. over 300,000

From 300,001 to 450,000

18,300 + 8.200% of amt. over 300,000

From 450,001 to 750,000

7,640 + 0.800% of amt. over 450,000

From 450,001 to 750,000

30,600 + 4.000% of amt. over 450,000

From 750,001 to 1,500,000

10,040 + 0.600% of amt. over 750,000

From 750,001 to 1,500,000

42,600 + 2.300% of amt. over 750,000

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

14,540 + 0.350% of amt. over 1,500,000

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

59,850 + 1.000% of amt. over 1,500,000

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

19,790 + 0.250% of amt. over 3,000,000

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

74,850 + 0.650% of amt. over 3,000,000

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

27,290 + 0.070% of amt. over 6,000,000

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

94,350 + 0.350% of amt. over 6,000,000

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

31,490 + 0.050% of amt. over 12,000,000

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

115,350 + 0.250% of amt. over 12,000,000

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

40,490 + 0.030% of amt. over 30,000,000

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

160,350 + 0.150% of amt. over 30,000,000

From 56,770,001 to 85,155,000

48,521 + 0.020% of amt. over 56,770,000

From 56,770,001 to 85,155,000

200,505 + 0.120% of amt. over 56,770,000

From 85,155,001 to 106,445,000

54,198 + 0.010% of amt. over 85,155,000

From 85,155,001 to 106,445,000

234,567 + 0.100% of amt. over 85,155,000

Over 106,445,001

56,327 + 0.008% of amt. over 106,445,000

Over 106,445,001

255,857 + 0.060% of amt. over 106,445,000

           

2.         The Tribunal’s fees shall cover the Tribunal’s activities from the time the file is transmitted to it until its last final award.

3.         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.

4.         If the amount in dispute is not quantified, CAA-HK shall determine the Tribunal’s fees, taking into account the circumstances of the case.

5.         If the arbitration is terminated before a final award is made, CAA-HK shall determine the arbitrator’s fees and expenses at its discretion, taking into consideration the stage of the arbitral proceedings as well as any other relevant circumstances.

6.         Amounts paid to the arbitrator do not include any applicable tax.

Section6: Lien on Award

CAA-HK and the Tribunal shall have a lien over any awards made by the Tribunal to secure the payment of any outstanding fees and expenses, and may refuse to release such awards to the parties until all the fees and expenses have been paid in full, whether jointly or by one of the parties.

Section7: Governing Law

The terms of this Schedule and any non-contractual obligations arising out of or in connection with them shall be governed by and construed in accordance with the law of Hong Kong.

 

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