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Enforcement

Last verified on Friday 27th April 2018

Hong Kong

Tony Dymond and ZJ Jennifer Lim

    Applicable procedural law for recognition and enforcement of arbitral awards

  1. 1.

    What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

    1. The Hong Kong Arbitration Ordinance (Cap. 609) (HKAO) is the applicable legislation in Hong Kong. The HKAO divides awards into four main categories for the purposes of enforcement:

      (i) Convention awards (defined in section 2 of the HKAO as awards made in states or territories which are party to the New York Convention (the Convention), other than the People’s Republic of China (PRC)), the enforcement of which is governed by Division 2 of Part 10 of the HKAO;

      (ii) Mainland awards (defined in section 2 of the HKAO as awards made in “any part of China other than Hong Kong, Macao and Taiwan”), the enforcement of which is governed by Division 3 of Part 10 of the HKAO;

      (iii) Macao awards (defined in section 2 of the HKAO as awards made in the Macao Special Administrative Region), the enforcement of which is governed by Division 4 of Part 10 of the HKAO;

      (iv) Awards made in Hong Kong and other arbitral awards that are not Convention awards, Mainland awards or Macao awards, the enforcement of which is governed by Division 1 of Part 10 of the HKAO. 

      Hong Kong, as a Special Administrative Region of the PRC, is not itself a party to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States – International Centre for Settlement of Investment Disputes, Washington 1965 (ICSID Convention). However, when the PRC took over sovereignty of Hong Kong from the United Kingdom in 1997, the PRC notified the United Nations and the World Bank that the ICSID Convention would apply to Hong Kong.

      The Arrangement Concerning Mutual Enforcement of Arbitral Awards Between the Mainland and the Hong Kong Special Administration Region allows for the enforcement of arbitral awards as between the PRC and Hong Kong, and similarly, the Arrangement Concerning Reciprocal Recognition and Enforcement of Arbitral Awards Between the Hong Kong Special Administrative Region and the Macao Special Administrative Region allows mutual recognition of arbitral awards between Hong Kong and Macao.

      With regard to the New York Convention, see question 2.

  2. 2.

    Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?

    1. Similar to the position with respect to the ICSID Convention, Hong Kong itself is not a separate contracting state party to the Convention. Nevertheless, the PRC, which entered into the Convention on 22 January 1987, extended the application of the Convention to Hong Kong in 1987.   

      The PRC has made both reciprocity and commercial relationship reservations under article I(3) of the Convention, which also bind Hong Kong. These mean that Hong Kong will apply the Convention (i) to recognise awards made in the territory of another Contracting State (the reciprocity reservation); and (ii) “only to differences out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration” (the commercial reservation).

    Recognition proceedings

  3. 3.

    Which court has jurisdiction over an application for recognition and enforcement of arbitral awards?

    1. In Hong Kong, the competent court for the recognition and enforcement of arbitral awards is the Court of First Instance of the High Court of Hong Kong (as defined in section 2 of the HKAO) (the Court). See sections 61 and 84 of the HKAO (granting leave to enforce an arbitral order, direction or award); sections 87(1)(a), 92(1)(a) and 98A(1)(a) of the HKAO (enforcing a Convention, Mainland or Macao award).

  4. 4.

    What are the requirements for the court to have jurisdiction over an application for recognition and enforcement of arbitral awards? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

    1. Section 84 of the HKAO specifies that an award in arbitral proceedings by an arbitral tribunal, whether made in or outside Hong Kong, is enforceable in the same manner as a judgment of the Court that has the same effect, but only with leave of the Court, and otherwise subject to the provisions of the HKAO. Typically, if a party tries to enforce an arbitral award in Hong Kong, it is because there is some jurisdictional nexus with Hong Kong (eg, assets located in Hong Kong), although it is not necessarily a statutory requirement for this to be the case.

  5. 5.

    Are the recognition proceedings in your jurisdiction adversarial or ex parte?

    1. As discussed in greater detail at question 8, an application seeking leave to enforce an arbitral award under section 84 of the HKAO is governed by Order 73, Rule 10, Rules of the High Court (Cap. 4A), as amended by section 13 of Schedule 4 of the HKAO. The application is made ex parte, supported by an affidavit. The Court may direct a summons to be issued where it considers it appropriate to give the other party an opportunity to be heard in an inter partes hearing. The recognition and enforcement proceedings themselves are adversarial in nature.

  6. 6.

    What documentation is required to obtain the recognition of an arbitral award?

    1. Under section 85 of the HKAO, a party seeking recognition of an arbitral award must produce: (i) the duly authenticated original award or a duly certified copy of it; (ii) the original arbitration agreement or a duly certified copy of it; and (iii) if the award or agreement is not in either or both of the official languages, a translation of it in either official language certified by an official or sworn translator or by a diplomatic or consular agent. The official languages of Hong Kong are English and Chinese.

      Sections 88, 94 and 98C of the HKAO require similar documents for the recognition of a Convention award, Mainland China award and Macao arbitral award, respectively. 

  7. 7.

    If the required documentation is drafted in another language than the official language of your jurisdiction, is it necessary to submit a translation together with an application to obtain recognition of an arbitral award? If yes, in what form must the translation be? 

    1. Yes. According to sections 85, 88, 94 and 98C of the HKAO, if the final arbitral award is not in either or both of the official languages, which are English or Chinese, it is necessary for the award to be translated into either official language, and certified by an official or sworn translator or by a diplomatic or consular agent.

  8. 8.

    What are the other practical requirements relating to recognition and enforcement of arbitral awards?

    1. Under Hong Kong law, the first step towards the recognition and enforcement of an arbitral award is the Court’s grant of leave to enforce the award.    

      The procedure for seeking leave to enforce an award under section 84 is governed by Order 73, Rule 10, Rules of the High Court (Cap. 4A), as amended by section 13 of Schedule 4 of the HKAO. The application is usually made on an ex parte basis and the applicant must make full and frank disclosure of all relevant information in support of the application, including the existence of any proceedings to set aside the award. The failure to do so could be fatal to the application. The Court may direct a summons to be issued where it considers it appropriate to give the other party an opportunity to be heard in an inter partes hearing.  

      Once leave to enforce is granted, the court’s order must be drawn up by or on behalf of the applicant and personally served on the respondent, delivered to his or her last known or usual place of business or abode, or in such other manner as the court may direct.  

      The award may be enforced 14 days after the date of service of the court’s order on the respondent, or under Order 73, Rule 10(6) of the Rules of High Court, the respondent may apply by way of summons and affidavit to set aside the order granting enforcement of the award within 14 days of being served. Note also that if an “application for setting aside or suspending” an award has been made, then “the court before which enforcement of the award is sought … may, if it thinks fit, adjourn the proceedings for the enforcement of the award.” (See sections 86(4)(a), 89(5)(a) and 98D(5)(a) of the HKAO).

  9. 9.

    Do courts recognise and enforce partial or interim awards?

    1. Section 71 of the HKAO states that “an arbitral tribunal may make more than one award at different times on different aspects of the matters to be determined”, meaning that partial or interim awards can be recognised and enforced.

  10. 10.

    What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under article V of the Convention?

    1. The major grounds for refusing recognition and/or enforcement of an arbitral award in Hong Kong are set out under HKAO sections 86(1), 89(2), 95(2) and 98D(2), which substantially replicate the grounds set out in article V(1) of the Convention. These grounds are:

      (a) a party to the arbitration agreement was (under the law applicable to that party) under some incapacity;

      (b) the arbitration agreement was not valid under the law to which the parties subjected it; or if there was no indication of the law to which the arbitration agreement was subjected, under the law of the country where the award was made;

      (c) a party was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings, or was otherwise unable to present the party’s case;

      (d) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration;

      (e) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or if there was no agreement, the law of the country where the arbitration took place; 

      (f) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made; 

      (g) the award is in respect of a matter which is not capable of settlement by arbitration under the law of Hong Kong; or

      (h) it would be contrary to public policy to enforce the award.

  11. 11.

    What is the effect of a decision recognising the award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?

    1. The grant of leave to enforce by a court is the first step towards recognition and enforcement of an award. The award is enforceable only after the expiration of 14 days (or such other period that the Court may fix) from the date of the service of the court’s order granting leave on the award debtor. See Hong Kong’s Rules of the High Court Order 73 Rule 10(6). An award debtor on which such an order is served may seek within 14 days from the date of service to resist enforcement as a way of challenging the decision recognising an arbitral award.

      Once an award becomes enforceable, it is enforced as though it were a local court judgment. As is the case with a local court judgment, the court may stay enforcement of the award under Order 47 Rule 1(1) of the Rules of the High Court where “there are special circumstances which render it inexpedient to enforce the judgment”. An example of this may include instances where the identity of the persons who control the relevant companies that are the subject of the award is unclear to the court.

  12. 12.

    What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?

    1. If the Court has refused leave to enforce an award under section 84(1) of the HKAO, an appeal against that decision may be made with leave of the Court pursuant to section 84(3) of the HKAO.  

  13. 13.

    Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?

    1. It lies within the Court’s discretion to determine whether it will adjourn an application to enforce an arbitral award if an action to remit or set aside the award is pending. The Court will consider factors such as the merits and prospects of success of the setting aside application (sections 86(4)(a), 89(5)(a) and 98D(5)(a) of the HKAO). 

      Note that section 84 of the HKAO is subject to section 26(2), which means that if an application for the enforcement of an arbitral award is made during the period where a challenge to the appointment of an arbitrator is pending before the courts, and the arbitral tribunal that made the award includes the challenged arbitrator, the Court may refuse enforcement of the award. This usually applies where the award on which enforcement is sought is a partial or interim award, rather than the final award.

  14. 14.

    If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?

    1. Sections 86(4)(b), 89(5)(b) and 98D(5)(b) of the HKAO provide that the Court can order security to be posted where an application for setting aside or suspension of the award has been made by a party.

      The chief factors likely to be considered by the Court when deciding whether or not to order security include: (i) the strength of the grounds of challenge to the award; and (ii) the possible difficulty in enforcing the award if security is not ordered. See Soleh Boneh International Ltd v Government of the Republic of Uganda and National Housing Corp [1993] 2 Lloyd’s Rep 208 CA (Eng).

  15. 15.

    Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? In case the award is set aside after the decision recognising the award has been issued, what challenges are available against this decision?

    1. Under section 89(2)(f)(ii) of the HKAO, the court has discretionary powers to refuse enforcement if the award has been “set aside or suspended by a competent authority of the country in which, or under the law of which, it was made”. In theory, this means that even if the award has been set aside at the seat of the arbitration, the enforcing court in Hong Kong could still decide to enforce the award, or alternatively, it could also proceed to allow enforcement of the award before the set aside application has been completed. Of note in this regard is Astro Nusantara International B.V. v PT First Media TBK HCCT 45/2010, where the courts at the seat of the arbitration had refused enforcement of the award (rather than having set it aside), but where the Hong Kong Court held that it was nonetheless possible for the court to exercise its discretionary powers to enforce the award.[1]



      [1] This decision was upheld by the Court of Appeal. However, leave to appeal to the Hong Kong Court of Final Appeal has been granted.

    Service

  16. 16.

    What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?

    1. The procedure for service with respect to applications to the court for leave to enforce arbitral awards is governed by Order 65 of the Rules of the High Court (service of documents in connection with proceedings within Hong Kong).

      Order 65 prescribes that service can be effected by (i) personal service; (ii) post; or (iii) inserting the documents through the letter box of the defendant at his or her usual or last known address, or in the case of a corporation, at its registered address.

      If it appears that it is impracticable to serve the documents in any of the methods prescribed above, the claimant can apply to the court for an order of substituted service. Substituted service of a document is effected by taking steps as the court may direct to bring the document to the notice of the defendant. Such an application is generally made by affidavit ex parte. The affidavit should clearly state the type of substituted service proposed, and it must show that the writ is likely to reach the defendant or come to his or her knowledge if the method of substituted service is allowed.

  17. 17.

    What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?

    1. There are different procedures that apply to service out of the jurisdiction, depending on the type of extrajudicial and judicial document being served. For documents related to arbitration, the following rules apply:  

      • Order 73, Rule 7 of the Rules of the High Court applies to summonses or orders made under the HKAO or any orders made thereon other than those by which an application for leave to enforce an arbitral award is made;
      • Order 73, Rule 10(5) of the Rules of the High Court applies to an order made further to an ex parte application seeking leave to enforce an arbitral award. 

      Pursuant to Order 73, Rule 7, summonses or orders made under the HKAO or any orders made thereon can be served out of the jurisdiction with leave of the Court provided that: (i) the summons or order relates to an arbitration governed by Hong Kong law save where the application is for leave to enforce an arbitral award; (ii) the arbitration has been, is being or is to be held within Hong Kong; or (iii) the originating summons is one by which an application is made under section 45(2) (interim measures) or section 60(1) of the HKAO (inspection, photographing, preservation, custody, detention, sale, sampling or experimenting of any relevant property).

      Pursuant to Order 73, Rule 10(5), an order made ex parte granting leave to enforce an arbitral award can be served without leave. If, however, service needs to be outside the jurisdiction, pursuant to Order 11, Rule 1(1)(m), an originating summons by which an application is made to enforce an arbitral award or any orders made thereon can be served out of the jurisdiction with leave of the Court. Such service is permissible with leave whether or not the arbitration is governed by Hong Kong law.

    Identification of assets

  18. 18.

    Are there any databases or publicly available registers allowing the identification of an award debtor's assets within your jurisdiction?

    1. In Hong Kong, certain databases are publicly available and can be used for the identification of assets. For example, land records with information about property assets are kept by the Land Registry, which is open to public searches. 

  19. 19.

    Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

    1. Section 84 of the HKAO provides that, with leave of the Court, an arbitral award may be enforced in the same manner as a judgment of the Court, subject to the provisions of the HKAO, meaning that orders facilitating the enforcement of judgments, such as the ability to examine judgment debtors under Orders 48 and 49Bof the Rules of the High Court, are also available in relation to the enforcement of arbitral awards 

      Pursuant to Order 48 of the Rules of the High Court, on an ex parte application of the award creditor, the Court may order the award debtor to attend before the Registrar or such officer as the Court may appoint and be orally examined on the following questions: (i) whether there are any debts owing to the award debtor by other persons; and (ii) whether the award debtor has any other property or financial resources that could be used for satisfying the award. If the award debtor is a limited company, the order can be made against a senior officer of the company.

      Pursuant to Order 49B of the Rules of the High Court, where the award is for the payment of a specified sum of money, on an ex parte application of the award creditor, the Court may order the examination of the award debtor on his or her assets, liabilities, income and expenditure and of the disposal of any assets or income. If it appears to the Court that there is reasonable cause to believe that an order to appear before the Court for examination may be ineffective to secure the award debtor’s attendance, the Court may order such award debtor be arrested and be brought before the Court on the day following the day of arrest.

      Further, pursuant to Order 38, Rules 13 and 14 of the Rules of the High Court, the judgment debtor may apply for an order (i) to require a non-party witness to attend any proceedings in the cause or matter and produce any document considered by the court to be necessary; or (ii) to compel the attendance of a non-party witness in order to give evidence or to produce documents or other material evidence.  

      Order 38 does not apply to discovery applications against non-party banks, to which Section 21 of the Evidence Ordinance applies. Section 21 provides that: “On the application of any party to any proceedings, the court or judge may order that such party be at liberty to inspect and take copies of any entries in a banker’s record for any of the purposes of such proceedings.” The Court in Pacific King Shipping Holdings Pte Ltd v Huang Ziqiang [2015] HKEC 76 noted that although the Court could grant such an order in the appropriate circumstances, it “would not lightly use its powers to order disclosure of full information touching the confidential relationship of banker and customer”.

    Enforcement proceedings

  20. 20.

    Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?

    1. Interim measures against assets are available in Hong Kong. Award creditors may apply for such measures before the arbitral tribunal or the court 

      Pursuant to section 35 of the HKAO, unless otherwise agreed by the parties, the arbitral tribunal may grant interim measures upon the request of any party. Such measures may be granted to a party: (i) to maintain or restore the status quo pending determination of the dispute; (ii) to take any action which would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process; (iii) to preserve assets out of which a subsequent award may be satisfied; and (iv) to preserve evidence that may be relevant or material to the resolution of the dispute.

      Pursuant to section 45 of the HKAO, the Court also may grant interim measures in support of arbitration upon the application of any party. The power conferred by this section may be exercised by the Court irrespective of whether or not similar powers may be exercised by an arbitral tribunal under section 35 in relation to the same dispute, though the Court may decline to do so if “the interim measure sought is currently the subject of arbitral proceedings” or if it “considers it more appropriate for the interim measure sought to be dealt with by the arbitral tribunal” (See section 45(4) of the HKAO).   

      Award creditors cannot apply such interim measures against assets owned by a sovereign state. Foreign states enjoy absolute immunity from enforcement and jurisdiction in Hong Kong, unless the foreign state has agreed to waive its sovereign immunity. See Democratic Republic of the Congo v FG Hemisphere Associates LLC (2011) 14 HKCFAR 95. With respect to the PRC, because Hong Kong is a Special Administrative Region of the PRC, the PRC will have “Crown immunity” as opposed to “sovereign immunity”, although the practical effect is similar. Whether or not a PRC entity, such as a PRC State-Owned Enterprise (SOE), would be able to shield its assets through Crown immunity would depend on a test of control (ie, whether or not the entity in question is able to exercise powers independent from the PRC government), in which case it is less likely to benefit from Crown immunity. See The Hua Tian Long (No.3) [2010] 3 HKC 557. 

  21. 21.

    What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?

    1.  Pursuant to section 35 of the HKAO, an award creditor can apply directly to an arbitral tribunal seated in Hong Kong for interim measures against assets. There is no requirement to obtain prior court authorisation to make such an application. Further, section 37 of the HKAO (unless the parties have agreed otherwise) allows a party to “without notice to any other party, make a request for an interim measure” (ie, a party can apply for an interim measure on an ex parte basis).

      As detailed in question 20, the Court can grant interim measures under section 45 of the HKAO, and this power can be exercised irrespective of whether or not similar powers may also be exercised by an arbitral tribunal under section 35 of the HKAO in relation to the same dispute. According to Order 29, Rule 1(2) of the Rules of the High Court, where the Court grants interim measures, where “the applicant is the plaintiff and the case is one of urgency such application may be made ex parte on affidavit…”

  22. 22.

    What is the procedure for interim measures against immovable property within your jurisdiction?

    1. With respect to an application for interim measures, Hong Kong law does not distinguish between immovable, movable, intangible or other forms of property. The procedure set out in question 21 will apply to interim measures for all types of assets or property. 

  23. 23.

    What is the procedure for interim measures against movable property within your jurisdiction?

    1. See response to question 21.

  24. 24.

    What is the procedure for interim measures against intangible property within your jurisdiction?

    1. See response to question 21.

  25. 25.

    What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?

    1. The procedure to attach assets in Hong Kong is to apply to the Court for such orders. The two main orders by which assets may be attached are through garnishee orders and charging orders.

      Garnishee Order

      Pursuant to Order 49, Rule 1 of the Rules of the High Court, in certain circumstances, award creditors, for the purpose of enforcing the award, may apply to the Court for a garnishee order. Order 49, Rule 2 of the Rules of the High Court states that an application for a garnishee order must be made ex parte, supported by an affidavit or affirmation (i) stating the name and the last known address of the judgment debtor; (ii) identifying the judgment to be enforced and stating the amount remaining unpaid under it at the time of the application of the garnishee order; (iii) stating that to the best of the information or belief of the applicant, the garnishee is within the jurisdiction and is indebted to the judgment debtor and stating the sources of the applicant’s information or the grounds for his or her belief; and (iv) stating, where the garnishee is a bank having more than one place of business, the name and address of the branch at which the judgment debtor’s account is believed to be held or, if it be the case, that this information is not known to the applicant.

      The garnishee order initially will be an order nisi. The Court may grant the award creditor an order absolute upon further consideration of the matter. The garnishee should pay the amount specified in the order to the award creditor, and any payment made by the garnishee in compliance with the order shall be a valid discharge of his liability toward the award debtor to the extent of the amount paid (Order 49, Rule 3 of the Rules of the High Court). 

      Charging Order

      For the purpose of enforcing an award, the Court may make an order imposing on any property of the award debtor, a charge to secure the payment of any debt due or to become due under that award (Order 50, Rule 1 of the Rules of the High Court). A charging order can be imposed on the following types of property: land/real estate, securities and funds in court (section 20A(2) of the High Court Ordinance). 

      An application for a charging order may be made ex parte, supported by an affidavit or affirmation (i) identifying the award to be enforced and stating the amount remaining unpaid under it at the date of the application; (ii) stating the name of the award debtor and of any creditor whom the applicant can identify; (iii) giving full particulars of the subject-matter of the intended charge; and (iv) verifying that the interest to be charged is owned beneficially by the award debtor. Unless the Court otherwise directs, the supporting affidavit or affirmation may contain statements of information or belief together with the sources and grounds for such information or belief (Order 50, Rule 1(3) of the Rules of the High Court).

      An order made by an ex parte application will be an order nisi. Upon further consideration of the matter, the Court may make the charging order absolute. The charging order, however, is not a direct mode of enforcement, but is rather an indirect mode in the sense that it provides the award creditor with security, in whole or in part, over the property of the award debtor. To obtain the actual proceeds of the charge, the award creditor must then proceed to apply further for an order to sell the specified assets and satisfy his or her award (Order 50, Rule 3 of the Rules of the High Court).

  26. 26.

    What is the procedure for enforcement measures against immovable property within your jurisdiction?

    1. With respect to an application for attachment, Hong Kong law does not distinguish between immovable, movable, intangible or other forms of property. The procedure set out in question 25 applies to applications for attachment for all types of property.

  27. 27.

    What is the procedure for enforcement measures against movable property within your jurisdiction?

    1. See response to question 25.

  28. 28.

    What is the procedure for enforcement measures against intangible property within your jurisdiction?

    1. See response to question 25.

    Enforcement against foreign states

  29. 29.

    Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

    1. In 2011, the Hong Kong Court of Final Appeal held in Democratic Republic of the Congo v FG Hemisphere Associates (2011) 14 HKCFAR 95 that an arbitral award against a foreign state cannot be enforced in Hong Kong unless the foreign state has waived its sovereign immunity, where the Court stated that such waiver must be made “in the face of the Court”. In that case, the Court observed that when a state enters into “an arbitration agreement with a private individual or company, it involve[s] merely the assumption of contractual obligations vis-à-vis the other party to the agreement. That act did not constitute a submission to any other State's jurisdiction.”

  30. 30.

    What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?

    1. The procedure for service of extrajudicial and judicial documents to a foreign state is governed by Order 11, Rule 7 of the Rules of the High Court.

      Subject to the sovereign state having waived its immunity as discussed above in Democratic Republic of the Congo v FG Hemisphere Associates (2011) 14 HKCFAR 95, after obtaining leave to serve under Order 11, Rule 1, a person who wishes to have the writ served on the state must lodge in the Registry:

      (i) a request for service to be arranged by the chief executive;

      (ii) a copy of the writ; and

      (iii) except where the official language of the state is, or the official languages of that party include, English, a translation of the writ in the official language or one of the official languages of that State.

      Documents duly lodged will then be sent by the Registrar to the Chief Secretary for the writ to be served on the state.

  31. 31.

    Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?

    1. Assets belonging to a foreign state are immune from enforcement in Hong Kong, unless the foreign state has waived such immunity.

  32. 32.

    Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?

    1. It is possible for a foreign state to waive immunity from enforcement in Hong Kong. For the requirements of such waiver, see question 29.

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Questions

    Applicable procedural law for recognition and enforcement of arbitral awards

  1. 1.

    What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?


  2. 2.

    Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?


  3. Recognition proceedings

  4. 3.

    Which court has jurisdiction over an application for recognition and enforcement of arbitral awards?


  5. 4.

    What are the requirements for the court to have jurisdiction over an application for recognition and enforcement of arbitral awards? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?


  6. 5.

    Are the recognition proceedings in your jurisdiction adversarial or ex parte?


  7. 6.

    What documentation is required to obtain the recognition of an arbitral award?


  8. 7.

    If the required documentation is drafted in another language than the official language of your jurisdiction, is it necessary to submit a translation together with an application to obtain recognition of an arbitral award? If yes, in what form must the translation be? 


  9. 8.

    What are the other practical requirements relating to recognition and enforcement of arbitral awards?


  10. 9.

    Do courts recognise and enforce partial or interim awards?


  11. 10.

    What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under article V of the Convention?


  12. 11.

    What is the effect of a decision recognising the award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?


  13. 12.

    What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?


  14. 13.

    Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?


  15. 14.

    If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?


  16. 15.

    Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? In case the award is set aside after the decision recognising the award has been issued, what challenges are available against this decision?


  17. Service

  18. 16.

    What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?


  19. 17.

    What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?


  20. Identification of assets

  21. 18.

    Are there any databases or publicly available registers allowing the identification of an award debtor's assets within your jurisdiction?


  22. 19.

    Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?


  23. Enforcement proceedings

  24. 20.

    Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?


  25. 21.

    What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?


  26. 22.

    What is the procedure for interim measures against immovable property within your jurisdiction?


  27. 23.

    What is the procedure for interim measures against movable property within your jurisdiction?


  28. 24.

    What is the procedure for interim measures against intangible property within your jurisdiction?


  29. 25.

    What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?


  30. 26.

    What is the procedure for enforcement measures against immovable property within your jurisdiction?


  31. 27.

    What is the procedure for enforcement measures against movable property within your jurisdiction?


  32. 28.

    What is the procedure for enforcement measures against intangible property within your jurisdiction?


  33. Enforcement against foreign states

  34. 29.

    Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?


  35. 30.

    What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?


  36. 31.

    Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?


  37. 32.

    Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?