Arbitration in Asia

Singapore and Hong Kong’s international arbitration journey: A tale of two cities

The popularity of arbitration as a mechanism of dispute resolution has paralleled forces of globalisation that have unleashed a new wave of trade and commerce in Asia, particularly in China, India and Southeast Asia. Mention Singapore, Hong Kong and international arbitration in the same sentence and talk of competition almost inevitably floats into the discussion. Both jurisdictions enjoy firm support from the business community for their pro-arbitration attitude. The judiciary in Singapore and Hong Kong generally adopt a stance of non-interference in the arbitration process. Both the governments of Singapore and Hong Kong aggressively market the arbitration credentials of their jurisdictions, so much so that many international arbitral organisations find that it makes sense to reach out to both jurisdictions. According to the latest 2010 statistics available on the Hong Kong International Arbitration Centre (HKIAC) website, HKIAC heard 624 dispute resolution matters, of which 291 were arbitration matters. The Singapore International Arbitration Centre (SIAC) saw it administering 198 new arbitration cases over the same period.

In 2008, the International Court of Arbitration of the International Chamber of Commerce decided to locate their Asian offices in both Hong Kong and Singapore. In deciding to do so, Jason Fry, the secretary general of the ICC Court stated:

(w)e are grateful for the encouragement we have received from the governments of Singapore and Hong Kong to come to the region. Both Singapore and Hong Kong are recognized hubs for international dispute resolution.1

Yet, both Singapore and Hong Kong have their limitations, in spite of their best efforts. Singapore is a comparatively smaller jurisdiction. It entered the international arbitration game later than Hong Kong. Hong Kong also hosts a larger pool of arbitral expertise. Singapore does not have the economic locomotive of China at its door-step, powering its efforts to be Asia’s arbitration hub of choice. Singapore has also had to refute unsubstantiated claims that its judiciary is too closely identified with the country’s long-governing political party.2 In fact, Singapore has to work doubly hard to encourage foreign corporate and entities to arbitrate in Singapore, for the same reasons these entities may consider Hong Kong as an equally attractive

alternative - pro-arbitration, general judicial reluctance to interference in arbitral decisions, good communication and transport links and strong government support for arbitration.

The China factor - although largely a boon for arbitration in Hong Kong - comes with its own baggage. For a number of years, the repeated concern by some quarters has paradoxically been Hong Kong’s proximity to China, with doubts expressed over the prospects of a fair trial, including perceptions of bias in favour of China related entities. That such views resonate was somewhat evidenced on the back of a two-year HKIAC project that ended in 2008. Aimed at promoting Hong Kong as a centre for international arbitration in the United States, 30 per cent of those surveyed opined that Hong Kong was ‘too close to China’ and that they could ‘not get a fair trial’ there.3 The reality of these perceptions led a HKIAC spokesperson to say that a part of the HKIAC’s remit was to stress the transparency of Hong Kong, its adherence to the rule of law and its ‘separate status and independent legal system’.4

Singapore’s reputation as a world class venue for international arbitration has attracted business entities from India and to a lesser extent, Indonesia. SIAC’s 2010 statistics reveal that while 14 cases involved China-related parties, it heard 36 involving India-related parties over the same period. Section 44 of the Indian Arbitration and Conciliation Act 1996 requires that a country which has signed up to the New York Convention must be reflected in India’s Official Gazette if an award from that country is to be ratified.5 Singapore appears in India’s Official Gazette. Hong Kong does not. Over the last 10 years in particular, Singapore has moved in leaps and bounds, building world class infrastructure to support arbitration, opening up the legal sector to foreign competition and building up international arbitration expertise that is arguably on par with that of Hong Kong today.

As both Singapore and Hong Kong continue to look to scale up and make themselves impossibly attractive for international arbitration work, this paper takes a look back at their respective journeys, tracing how both jurisdictions worked assiduously to turn themselves into the arbitration powerhouses that both have become, with a focus on legislative evolution and infrastructure development.

Singapore: late bloomer shines brightly

The active promotion of international arbitration in Singapore is a fairly recent phenomenon, dating back about 25 years. Situated at the crossroads of Southeast Asia, and in between the sea-lanes of communication that sit astride China and India, Singapore’s geography and trade links put it in a unique position to market itself as the premier arbitration hub for Asia. Its enviable geographic location is buttressed by a legal regime and legislative framework that is arbitration-friendly and fiercely observant of the rule of law. Underpinning this is a government that is dedicated to promote Singapore as an arbitration hub for Asia.

Significantly, Singapore is also perceived by the business community as a neutral venue for arbitration, and the repeatedly strong ranking of the country in corruption indices underpin the legislative environment. In turn, Singapore’s legal regime is supported by a world class arbitration infrastructure in the shape of Maxwell Chambers, a purpose-built facility that houses a number of world-class arbitral institutions. The Singapore judiciary’s philosophy towards arbitration was most succinctly captured in the Court of Appeal judgment in Tjong Very Sumito vs Antig Investments Pte Ltd [2008] SGHC 202:

An unequivocal judicial policy of facilitating and promoting arbitration has firmly taken root in Singapore….The role of the court is now to support, and not to displace, the arbitral process.

Tracing the evolution and establishment of international arbitration in Singapore necessitates a short trip down memory lane.

The UNCITRAL Model Law’s journey to Singapore

In 1890, an Arbitration Ordinance was enacted for the Straits Settlements, which included the Crown colony of Singapore. This was replaced in 1953 by a new Arbitration Ordinance which was renamed as the Arbitration Act after Singapore’s independence in 1965. The Act did not differentiate between local and foreign arbitrations, and more specifically, countenanced a relatively high level of judicial intervention.6 A distinction was first made with the enactment of the Arbitration (International Investment Disputes) Act of 1985 and the Arbitration (Foreign Awards) Act of 1986. This was a response to Singapore’s accession to the New York Convention on the Recognition and Enforcement of Foreign Arbitral awards 1958 (more commonly known as the New York Convention). However, the Arbitration (Foreign Awards) Act did not establish a legislative framework for the conduct of arbitration in Singapore involving foreign parties. Instead, it was enacted to deal with enforcement issues affecting arbitral awards made in countries that had already acceded to the New York Convention. The long-standing Arbitration Act was also amended in 1985, designed to specifically deal with domestic arbitrations.

The UNCITRAL Model Law was adopted by the United Nations Commission on International Trade Law on 21 June 1985. Having only recently reorganised and bifurcated its arbitration regimes to address local and foreign arbitrations, the Ministry of Law was tasked to look into the reform of local laws on commercial arbitration in 1991. It appointed a Sub-Committee to review arbitration legislation in Singapore which submitted its findings in 1993. The Committee looked closely at reports made by other national law review committees, especially the United Kingdom’s Mustill Report, which had previously concluded that the Model Law did not offer a regime was superior to what was already in existence in England.7

In recommending the adoption of the Model Law, the Sub-Committee presciently recommended that Singapore had to adopt ‘a world view of international arbitration’ if it aimed to become an international arbitration centre, and could not take the UK position. At the second reading of the Bill, the parliamentary secretary of the Ministry of Law observed that the Model Law would appeal to international businessmen and lawyers, particularly those that would be unfamiliar with the common law and English concepts of arbitration, and that this would promote Singapore’s role as a growing centre for international arbitration.8 In January 1995, the International Arbitration Act was duly passed, replacing the Arbitration (Foreign Awards) Act 1986, with some modifications.

With the Model Law incorporated into the new International Arbitration Act, the Ministry of Law set up the Review of Arbitration Act Committee in 1997, to assess the regime covering local arbitrations. Unlike the United Kingdom which legislated a single comprehensive arbitration framework in the form of the 1996 Arbitration Act, the Review of the Arbitration Act Committee consciously decided to maintain two separate regimes for arbitration in Singapore - one for local arbitrations and the other for international arbitration. The reason for maintaining this distinction was to allow for the prospect of a higher degree of curial intervention on domestic matters.

More substantively, it offered an option to parties to decide whether they wished to ‘opt in’ or ‘opt out’ of either regimes by making specific reference to either the International Arbitration Act of the Arbitration Act, depending on each parties’ desire on the extent of curial supervision. The new Arbitration Act came into force in 2002 with a view to align the Act with the Model Law, yet applying in circumstances where the Model Law did not.9 In 2004, amendments were made to the Legal Profession Act allowing individuals previously not authorised to practice law in Singapore to represent parties in arbitration proceedings, including advice, documentary preparation and other assistance in relation to or arising out of arbitration proceedings.10 Separately, foreign lawyers had already been allowed to represent parties in arbitration proceedings in cases where the governing law was not Singapore law since 1992.11 Finally, in 2007, the government appointed a committee led by Justice V K Rajah to undertake a comprehensive review of the legal services sector to allow foreign law firms to vet and draft Singapore law agreements incorporating arbitration clauses and advising parties on their rights and liabilities in such agreements both before and after a dispute is arbitrated.12

Without doubt, the legal changes introduced in the years in between 1991 and 2007 fundamentally altered the arbitration landscape in Singapore. But what of Singapore’s arbitration hardware?

Infrastructure and support: building a world-class arbitration infrastructure

Singapore’s road to becoming a world class arbitration hub was by no means straightforward. In fact, the first step towards establishing a concrete presence only occurred in 1991 with the decision to set-up the not-for-profit SIAC. The SIAC is the premier arbitration institution in Singapore. It primarily administers cases under that subscribe to its own rules, the latest version having been recently updated in 2010. It is also able to preside over arbitrations in accordance with the rules agreed to by disputants. The significance of the formation of the SIAC was that it gave Singapore an institutional arbitration capability with a case administration arm and a trained panel of international arbitrators.

Local media reports are generally unclear about when Singapore first decided to pursue its aim of making Singapore an arbitration hub in Asia. However, one article published on 30 April 1987 in the main local daily, The Straits Times, appropriately titled ‘Singapore may be arbitration centre’, does shed some light on when the first seeds were sown.

The article reported that Warren Khoo, then a council member of the Law Society of Singapore and the Singapore Institute of Arbitrators, but who would later serve on the High Court bench, disclosed the imminent establishment of a working committee to study the possibility of setting up an arbitration centre to settle international commercial disputes. This was on the back of visit by Michael Gaudet, the then chairman of the International Chamber of Commerce (ICC) Court in Paris who was quoted as saying,

‘(w)e are very rewarded to see that the public authorities realise that this might well be the proper time to set up a centre here’.

Mr Khoo noted that the Singapore Economic Development Board had ‘taken a lot of initiative in the idea’ while the attorney general’s chambers was ‘very actively interested’ and very supportive. Mr Khoo, who was also frank in his assessments of the arbitration landscape in Singapore, was quoted as saying:

I think it is correct to say that Singapore is alone, among the major trading nations in Asia, not to have an established arbitral institution, an institution that people can readily refer to when drafting a contract or when a dispute has arisen and there is a need to consider arbitration….The closest thing we have is the Singapore Institute of Arbitrators, which was established a few years ago….But the institute assists arbitrations only of an ad hoc variety and in an ad hoc manner by providing, when requested to do so, a list of arbitrators on its panel.13

By the early 1990s, with a new chief justice at the helm, the local judiciary, in its drive to reduce the backlog of cases pursued the encouragement of dispute resolution through alternative dispute resolution (ADR). These efforts included mediation and arbitration, and institutionalising the concept of the ‘pre-trial conference’, with a view to explore other means of dispute resolution instead of litigation.

This drive in the direction of ADR was helpful, as local and international businesses operating in Singapore became increasingly aware of alternative dispute resolution mechanisms like arbitration. As the government worked to make Singapore arbitration friendly by investing in institutions and updating legislation, early results were beginning to show. According to Professor Lawrence Boo, by the first half of the first decade of the new century, International Chamber of Commerce data revealed Singapore to be the most popular arbitral seat for ICC arbitration in Asia.14 The ICC International Court of Arbitration also reported that Singapore was one of the top five arbitrations jurisdictions in the world.15

On 21 January 2010, Singapore officially opened Maxwell Chambers, the permanent home of the SIAC and offices for a host of other world class arbitral institutions. The idea of Maxwell Chambers was incubated by the Legal Services Working Group of the Economic Review Committee in 2002, chaired by then Deputy Prime Minister Lee Hsien Loong who stressed the need for ‘good infrastructure and facilities’ to make Singapore a regional alternative dispute resolution service centre.16

By November 2005, the Ministry of Law started planning for an integrated dispute resolution complex, settled on a site and commenced design work in January 2007. Maxwell Chambers was completed in July 2009 and the first hearings took place shortly thereafter. The completion of Maxwell Chambers also coincided with the appointment of a new blue-ribboned SIAC Board comprising nine leading arbitrators and arbitration counsel chaired by the current SIAC chairman Professor Michael Pryles. The appointments were made to bring a new depth to the international expertise of SIAC with a view to boost its international reputation.17

Even as work on getting the infrastructure in place was taking place, the American Arbitration Association signed an agreement with the SIAC in 2006 to start a joint venture, known as the International Centre for Dispute Resolution (ICDR), giving Singapore’s arbitration industry a noteworthy shot in the arm. In 2007, another world-renowned arbitral institution, The Permanent Court of Arbitration (PCA), based in The Hague, signed an agreement with the Singapore government to establish a virtual hearing centre in Singapore for PCA cases. According to Tjaco van den Hout, the secretary general of the PCA:

(t)he decision to set up a facility (in Singapore was) a response to a more general request from the membership of our organisation to conduct an outreach to the region, and the choice of Singapore we considered a natural one because it is arbitration friendly and in itself has a flourishing arbitration industry.18

To date, Maxwell Chambers houses many international arbitration institutions from Singapore and around the world. Apart from SIAC, these include the Court of Arbitration of the International Chamber of Commerce, the International Centre for Dispute Resolution, the International Centre for the Settlement of Disputes (ICSID), the Permanent Court of Arbitration, the London Court of Commercial Arbitration, the World Intellectual Property Organisation Arbitration and Mediation Centre, the Singapore Chamber of Maritime Arbitration, Chartered Institute of Arbitrators and the Singapore Institute of Arbitrators.

The expansion of the arbitration space in Singapore is also a major reason which explains the presence of eight of the top 10 law firms in terms of revenue in Singapore. 19 In 2010, it was estimated that the number of new international arbitration cases in Singapore was expected to rise by up to 20 percent over the next few years.20

In 2011, the SIAC handled 188 new cases, involving claims of S$1.32 billion. This was slightly lower than in 2010, which saw the institute handle 198 cases with the claim amount reaching S$1.35 billion of which about 70 per cent were multi-jurisdictional in nature.21 On the 2011 figures, which were marginally lower that the 2010 numbers, SIAC chairman Michael Pryles sounded an upbeat note, ‘(w)e feel we are in the A league now, and our total number of arbitrations is very close to the London Court of International Arbitration.’22

Separately, at the 2011 Singapore Academy of Law Conference, Court of Appeal judge, The Honourable Judge of Appeal Justice V K Rajah noted that 40 per cent of all international arbitrations that took place at the SIAC designated Singapore law as their governing law, marking a 10 per cent increase from previous years. A similar trend was also observed in ad hoc arbitrations; both developments highlighting the growing employment of Singapore law in regional transactions. Justice Rajah also stressed that the development of arbitration in Singapore required the legal community to strive continually so as to maintain the defining features of arbitration - speed, cost and flexibility.23

Playing up the India attraction

In 2005, Singapore and India signed the Comprehensive Economic Cooperation Agreement (CECA). Even so, in 2006, only four India-related arbitrations were heard at the SIAC. In stark contrast, five years later in 2011, most foreign arbitrations heard in Singapore were from India.

However, the large number of Indian disputes heard at the SIAC has not gone unnoticed. The London Court of International Arbitration set up its first independent subsidiary in New Delhi in 2009 and updated its arbitral rules in 2010, portending stiff competition with Singapore in the years to come.24 Even Malaysia’s Kuala Lumpur Regional Centre for Arbitration has gone on road shows in Mumbai and Delhi with a view to attract Indian parties to Malaysia for arbitration.25

Not that Singapore is resting on its laurels. Top legal representatives continue to visit India to aggressively present Singapore’s arbitration capabilities. Law Minister K Shanmugam was in Mumbai in 2010 to participate in a conference organised by the SIAC and spoke again at an SIAC conference later in the year in Singapore on India as a global business destination. In early 2012, at another conference aptly titled ‘Arbitration India’ organised by the SIAC and the Confederation of Indian Industry (CII), Justice Rajah informed delegates that all arbitral awards made by Singapore courts in 2011 had been upheld by the Indian courts, effectively restating the reliability of Singapore as a neutral venue for arbitration.26

Recent changes to the International Arbitration Act

Speaking at the inaugural Arbitration Dialogue organised by the Law Ministry in 2011, Minister K Shanmugam stated that Singapore intends to be at the ‘leading edge of thinking in international arbitration.’27 The minister then went on to unambiguously outline the government’s approach to arbitration.

As I tell the arbitration practitioners we meet, our approach in Singapore is: we see a problem, and where it can be solved legislatively, we are in a position to do that within three to six months. For example, in almost every jurisdiction, you might get cases which sometimes are not consistent with how we want arbitration to be supported. We came across such a case from the High Court and the situation was sorted out legislatively within four months. That is the approach we take when we have a court system and judicial philosophy now which is extremely supportive of arbitration as well. They intervene in appropriate cases; they do not take a completely hands-off approach, but totally supportive and in line with international thinking.28

The 2009 amendments to the International Arbitration Act

In line with Singapore’s reputation as an arbitration-friendly jurisdiction, the International Arbitration Act was amended in 2009. Interestingly, the purpose of the 2009 International Arbitration Act (Amendment) Bill was tellingly enunciated by the minister at the end of the second reading of the Bill, making it clear what the end-goal of the government was:

(T)o keep our International Arbitration Act modern, effective and arbitration-friendly. This will in turn help to keep Singapore at the forefront as a top international arbitration centre.

Even though the 1985 Model Law underwent a revision in 2006, Singapore, after consultation with industry experts, decided against its full adoption.29 In fact, the only 2006 amendment to the Model Law that was incorporated into the International Arbitration (Amendment) Bill 2009 was the enactment of the Section 12A which expressly enables a Singapore court to grant interim orders in certain circumstances, in furtherance of arbitration hearings held outside Singapore. This lacuna in the law was hitherto most tellingly exposed in the case of Swift-Fortune v Magnifica Marine SA [2007] 1 SLR 629 where the Singapore Court of Appeal held that it did not have the power to grant interim orders to support such arbitrations.

In concert with the Singapore courts’ approach to minimise curial intervention involving international arbitration hearings held in Singapore, the scope of section 12A is limited only to interim measures in support of arbitration, such as interim injunctions to preserve assets. These interim injunctions do not extend to procedural or evidential matters which determine the conduct of the arbitration such as discovery, interrogatories or security for costs.30 However, a reluctance towards curial intervention does not preclude the Singapore courts’ from assisting in the arbitral tribunal, particularly when the latter has no power to act.

The 2009 amendments to the International Arbitration Act also saw the modernisation of the definition of an ‘arbitration agreement’ which now covers ‘electronic communication’. While the Act refers to physical written forms of communication like letters, telexes, telegrams, etc, it also covers ‘electronic communications’ such as electronic mail and electronic data exchange.

The third key amendment to the International Arbitration Act in 2009 covered the authentication of ‘made in Singapore’ awards. This was in response to industry feedback that some parties were not able to enforce Singapore awards overseas as foreign courts required the awards to be authenticated before enforcement. The amendment allows the minister of law to prescribe designated bodies and institutions to authenticate awards made in Singapore.

The 2011 amendments to the International Arbitration Act

Even though the International Arbitration (Amendment) Act 2009 came into force in 2010, by late 2011, the Ministry of Law launched another public consultation exercise on additional amendments to the International Arbitration Act and proposed the enactment of a Foreign Limitation Periods Act (FLPA) that would apply to arbitration. The language employed by the Ministry in the public consultation paper was noteworthy. Acknowledging Singapore as a global venue for arbitration, the public consultation paper quoted a 2010 White & Case/Queen Mary study which found that Singapore was Asia’s top arbitration destination. The Queen Mary survey assessed a number of criteria, especially factors which influence the choice of law, choice of seat, choice of arbitrators and arbitral institutions. Insofar as the seat of arbitration was concerned, it was noteworthy that the survey respondents rated national arbitration laws, a jurisdiction’s record of enforcing arbitration agreements and awards, and the perceived neutrality and impartiality of the jurisdiction as the most important factors. Singapore scored highly in each category.31

30 per cent of the survey respondents listed London as their preferred seat of international arbitration, followed by Geneva with 9 per cent. Singapore was ranked alongside Tokyo and Paris with 7 per cent listing it as their preferred seat, ahead of New York. The fact that Singapore was not even on the previous Queen Mary survey in 2006 is indicative of the progress made by the country in promoting itself as an international arbitration hub.

Four changes to the International Arbitration Act were proposed in the International Arbitration Act (2011) Amendment Bill.32 In its current form, the International Arbitration Act only recognises arbitration agreements made in writing, a point that does not accord with commercial reality in cases where arbitration agreements are often concluded orally, and put into writing later. The proposed changes are in line with the 2006 Model Law, or the ‘hybrid approach’, which extends the International Arbitration Act’s application by any means, including by conduct and orally, as long as their content is recorded in any form.

Secondly, the International Arbitration Act does not permit a Singapore court to adjudicate the decisions of arbitration tribunals that rule the former have no jurisdiction hear a dispute, ie, negative jurisdictional rulings. This is in contrast to the Singapore courts’ ability to review positive jurisdictional rulings, where arbitral tribunals rule that a Singapore court can hear the dispute in question. The Law Ministry’s view was that an inequity is just as likely to arise from a negative jurisdictional ruling as it is from a positive jurisdictional ruling. The amendment seeks to allow parties to have recourse to Singapore courts in respect of both positive and negative jurisdictional rulings. Amending the International Arbitration Act to allow for negative jurisdictional rulings would differ from the Model Law position taken by the Court of Appeal in PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR® 597 which interprets article 16(3) to allow appeals only with respect to positive rulings on jurisdiction.33

Thirdly, the Ministry of Law seeks to empower arbitral tribunals with the power to award simple or compound interest on monies claimed in arbitrations and orders for one party to pay the other party’s legal costs. It is noteworthy that the Ministry’s public consultation paper at paragraph 13 revealed that the draft provision was based on section 79 of the Hong Kong Arbitration Ordinance 2010.

The final substantive amendment covers the appointment of the ‘emergency arbitrator’ which was introduced by the SIAC Rules 2010. The proposal seeks to ensure that an order to appoint an emergency arbitrator is enforceable under the International Arbitration Act, as the current legal status of emergency arbitrators and the enforceability of their interim orders is unclear.

In concert with these latest amendments, the introduction of the FLPA seeks to clarify which country’s limitation laws apply to disputes that are litigated in Singapore (either through court or arbitration), but which are governed by another country’s laws. The Ministry of Law has recommended that the law which governs the dispute should apply.

A fascinating canard to the latest public consultation exercise is the Ministry of Law’s readiness to float trial balloons for commentary and criticism. While not proposing the specific amendments, the Ministry is considering amending the International Arbitration Act to allow parties, by agreement, to waive their right to set aside arbitration awards, effectively excluding the prospect of appeal to the courts. It is noteworthy that the Ministry referred to the new French Arbitration Act which contains that very provision in article 1522, so as to bring finality to disputes between parties. Another trial balloon floated in the recent exercise involved a move away from the doctrine of champerty to allow the qualified use of third party funding to fund litigation and arbitration. The 2011 amendments to the International Arbitration Act were read in Parliament a second time on 9 April 2012 and passed without changes.

The Ministry’s desire to keep pace with international developments reiterates the pro-arbitration framework that Singapore seeks to build upon, so as to keep pace with other world-class arbitration jurisdictions around the world. That it will do so is hardly in doubt.

Hong Kong: Asia’s most established arbitration venue?

Hong Kong has been the repeatedly ranked as the world’s freest economy. Its long and deep history of commerce parallels its status as one of Asia’s most mature legal jurisdictions. In its 2011 Economic Freedom of the World annual report, the Frasier Institute ranked Hong Kong in first place for economic freedom, a position it has retained for the last 33 years.34 Hong Kong was also ranked as the world’s most competitive economy by the World Competitiveness Yearbook 2011 published by the International Institute for Management Development.35

Hong Kong’s judiciary, in particular, its Court of Final Appeal is served by pre-eminent lawyers from Hong Kong, including serving Supreme Court judges from the United Kingdom and retired Chief Justices from Australia. It is home to more than 8,000 lawyers with nearly 1,300 registered foreign lawyers from 28 jurisdictions.36Infrastructure remains second to none, and its communication and transport links are world class.

In spite of misgivings about China and the role Beijing plays in determining economic policy in Hong Kong, business confidence has remained high even after 1997, when Hong Kong was returned to China. Hong Kong remains a global financial centre and has stuck to the common law system. It is also a separate customs territory from the rest of China. Its existence as a Special Administrative Region of China has not stopped the employment of common law precedents and various international treaties. Covenants on the protection of fundamental rights have been incorporated into Hong Kong law. Arbitral awards in Hong Kong are enforceable in China because of a mutual legal assistance arrangement signed in 1999.

In fact, Hong Kong’s gravitas as an international arbitration centre under the ‘one country, two systems’ principle has increased, as it offers an ideal place for international arbitration bodies interested in the China-related work. In 2010, Hong Kong signed a cooperation agreement with the China Council for the Promotion of International Trade - one of the aims of which was to strengthen cooperation between Hong Kong’s arbitral institutions and their China-based equivalents like the China International Economic and Trade Arbitration Commission (CIETAC).37 For its part Beijing continues to render ‘unwavering support to Hong Kong as a matter of national policy and interests.’38 The Mainland and Hong Kong Closer Economic Partnership Agreement (CEPA), a free-trade agreement privileges Hong Kong products with zero import tariffs into China, and is one of the economic umbilical cords that make Hong Kong a gateway to the burgeoning growth in China. Tellingly, in the words of Secretary of Justice Wong Yan Lung, ‘China is making full use of Hong Kong’s strength in the legal field to enhance its own economic interests in the global arena.’39

Like Singapore, a peek into the past tells a fascinating story of Hong Kong’s evolution into a premier arbitration centre in Asia.

Tracing Hong Kong’s arbitral evolution

The colony of Hong Kong introduced its first Arbitration Ordinance in 1844, which gave the presiding Governor wide powers to refer any civil dispute to arbitration. Curiously, the Ordinance was not passed as an alternative to litigation but as a main means of dispute resolution since no civil litigation system existed in Hong Kong in 1844. In fact, it was enacted as an interim measure until a legal system took root in the colony and powers granted to the Governor would cease after the appointment of a Supreme Court judge in Hong Kong. Unfortunately as the Ordinance was not sanctioned by London, the Colonial Office rendered it otiose about five months after its enactment. 40

It was only with the enactment of the Civil Administration of Justice (Amendment) Ordinance in 1855 that arbitration as an alternative means of dispute resolution was recognised in Hong Kong. The 1855 Ordinance remained on the Hong Kong statute books until 1901. It was finally repealed in 1901 by the Code of Civil Procedure which incorporated many provisions found in the English Arbitration Act of 1889. The former was in turn repealed in 1950 by the Supreme Court (Amendment) Ordinance.

The Hong Kong Arbitration Ordinance (Cap 341) of 1963 was the first comprehensive arbitration legislation for the colony containing provisions that applied to domestic and international arbitrations. Based on the English Arbitration Act of 1950, it would remain in force until 2011. In the case of a domestic arbitration, the Ordinance gave the courts a discretion to stay court proceedings. In an international arbitration, however, a stay was mandatory. While remaining the backbone of Hong Kong’s arbitration regime for almost 50 years, it was amended a number of times to support truly international arbitration in Hong Kong, rather than remaining distinctly English-based. In 1975, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards was also incorporated into the Ordinance.

In 1979, Attorney General John Griffiths QC appointed a Law Reform Commission to assess what new provisions ought to be included into the Hong Kong Arbitration Ordinance. The findings of the 1981 Report on Commercial Arbitration led to the Arbitration (Amendment) Ordinance becoming law in 1982, and it marked the first time Hong Kong’s arbitration laws transitioned from the arbitration laws of England.

Shortly thereafter, the attorney general channelled his efforts to see how Hong Kong could develop into an international arbitration centre. A steering committee was set up under the late Justice David Hunter comprising two sub-committees; one to study the financial viability of a Hong-Kong based international arbitration centre and the other to look at what rules it should adopt.

Born in the private sector: the Hong Kong International Arbitration Centre

The Committee proposed arbitration facilities to be provided by private institutions in addition to courses provided by tertiary institutions to teach arbitration law and practice.41On the financial front, about HK$1.5m was raised from the private sector, with the government matching the contribution dollar for dollar.42 The government also set aside a floor of the old Central Magistracy Building for the HKIAC, a company limited by guarantee subsequently granted charitable status, which heard its first arbitrations hearing from September 1985. The lack of experienced arbitrators was addressed by legislative changes that enabled judges and civil servants to accept appointments as arbitrators in Hong Kong.43

In the late 1980s, the financial capital that led to the establishment of the HKIAC was running out. As a result, in March 1990, the Finance Committee of the Legislative Council extended a one-time grant of HK$19.1m from which the institution draws an investment income. With financial hurdles out of the way, the HKIAC made representations to the government for larger premises as HKIAC’s growth had rendered the Arbuthnot Road premises inadequate. After introducing the Model Law in 1990, 54 cases were heard at the HKIAC. In 1992, the number of administered cases grew rapidly to 185 cases.44

In response, the Hong Kong government duly offered HKIAC half of the 38th floor at Exchange Square. Today, with the increase in the number of arbitrations coming to Hong Kong, further expansion and refurbishment of the HKIAC is already underway, with the entire 38th floor to be taken up by the HKIAC, with a total floor space of over 1200 square metres, effectively doubling its current size.45

With the adoption of the UNCITRAL Model Law in 1985, the Law Reform Commission set up a specialist sub-committee to consider whether Hong Kong should adopt the Model Law. In September 1987, the Commission recommended the adoption of the Model with minor amendments. The Model Law was formerly enacted as the Arbitration (Amendment No. 1) Ordinance 1989, and it was incorporated as the Fifth Schedule to the Arbitration Ordinance. The Commission gave a number of reasons for doing so.46 Amongst others, adoption of the Model Law provided a sound framework for international arbitration and Hong Kong would benefit as a growing centre of international arbitration. In its proposals, the Commission also recommended that permanent funding be set aside for the HKIAC and that it be formally recognised as a part of Hong Kong’s arbitration laws with a view to promote it as a Hong Kong institution nominated in arbitration clauses.

In 1992, the attorney general put together a committee of the HKIAC under the chairmanship of Justice Neil Kaplan to look into the prospects of amendments to the Arbitration Ordinance in concert with the May 1991 release of a new draft Arbitration Act in the United Kingdom. It was on this committee’s recommendations that the Arbitration Ordinance underwent another significant update in 1997 with the enactment of the Arbitration (Amendment) Ordinance 1996, a few months before Hong Kong reverted to the People’s Republic of China (PRC).

A number of new provisions were introduced to extend party autonomy and to limit the extent of curial intervention in arbitrations. A new Section 2AA was also introduced stating the objects and principles of the Arbitration Ordinance - to facilitate the fair and speedy resolution of disputes by arbitration without unnecessary expenses. Section 2AA(2) which outline the principles of the Ordinance stated that parties should be free agree how a dispute was settled bearing in mind the public interest and that the court’s curial powers are as detailed by the Ordinance. The committee also recommended a fundamental reform of the Arbitration Ordinance for the long-term. However, as this proposal was significantly more complex that the surgical amendments of specific amendments to the Ordinance, it was held in abeyance, ultimately only seeing the light of day in 2011.

The 1997 handover did present one important problem. The return of Hong Kong to Chinese sovereignty meant that in the eyes of the New York Convention, Hong Kong was no longer a separate jurisdiction. This made it impossible to enforce a mainland China award in Hong Kong and a Hong Kong award in mainland China after 30 June 1997. The matter was resolved nine days before the handover, when both jurisdictions signed a memorandum of understanding (MOU) known as the ‘Arrangement concerning Mutual Enforcement of Arbitration Awards between Mainland and the Hong Kong SAR’. The MOU iterated that courts of Hong Kong would agree to enforce awards made with reference to the arbitral laws of the PRC. Likewise, PRC courts would agree to enforce awards made in Hong Kong in accordance with the Arbitration Ordinance. The provisions of the MOU were duly incorporated in the Arbitration (Amendment) Ordinance 2000.

Towards a unified arbitration ordinance

In 1998, the Hong Kong Institute of Arbitrators sought to look into the prospects of a unitary regime to that would apply the Model Law to domestic and international arbitration agreements as recommended by the 1992 Committee on Arbitration Law of the HKIAC. They established a Committee on Hong Kong Arbitration Law, supported by the HKIAC and the secretary of justice. Their terms of reference were to operationalise the recommendation of the 1992 Committee which proposed that:

... The Arbitration Ordinance, Cap. 341, as amended by the [Arbitration (Amendment) Ordinance (No. 75 of 1996)], should be completely redrawn in order to apply the Model Law equally to both domestic and international arbitrations, and arbitration agreements, together with such additional provisions as are deemed, in the light of experience in Hong Kong and other Model Law jurisdictions, both necessary and desirable. In the process, the legislation would keep pace with the needs of the modern arbitration community; domestically and globally, and would free Hong Kong from the outdated and illogically arranged English Arbitration Acts [1950-1979, now repealed], and the large body of case law on which their interpretation depends.47

On the need for a unitary regime, the committee cited a number of advantages. First, the question of whether the local or international regime applies is avoided. Secondly, a unitary regime was in keeping with the international trend of reducing curial intervention in all forms of arbitral proceedings. Thirdly, the international character of business in Hong Kong and the existence of a unitary regime would enable the both the business community and the legal profession to operate an arbitration regime that is in line with international arbitration development and practices. Finally, the Model Law would also attract lawyers from civil law, not just common law jurisdictions.48

After five years of work and consultation, the committee submitted its final report in April 2003 to the secretary of justice. The report also extended the scope of application beyond ‘commercial arbitration’ by referring specifically to ‘an arbitration under an arbitration agreement’, unlike the Model Law which refers specifically to in article 1(1) to ‘international commercial arbitration’.49

In June 2005, the Department of Justice sought the input of the members of the Legislative Council Panel on Administration of Justice and Legal Services (AJLS) on the committee’s report. With the AJLS’ support, a Department of Justice Departmental Working Group was established to implement the report recommendations. A consultation paper was published in December 2007 and feedback was sought on the proposals made in the paper as well as the Department of Justice’s consultation draft Arbitration Bill (Arbitration Bill 2007). The latter was unambiguous about the principal rationale of the Bill - one of which was to reinforce and promote Hong Kong as a leading regional centre for legal services and dispute resolution.50

The paper was circulated to 60 entities including arbitration institutions, government departments, legal representatives and to variety of private bodies. More than 40 submissions were received and the working group duly considered all submissions, which were in turn taken into account by the Department of Justice. After some revisions in light of feedback, the Arbitration Bill 2007, was then tabled before the Legislative Council in June 2009 as the Arbitration Bill 2009. The Bill’s committee held 13 meetings from July 2009 to May 2010 to deliberate the Arbitration Bill 2009 and some committee stage amendments to the 2009 Bill were introduced.51 Some of the highlighted amendments were as follows52:

  • Clause 18(2)(a)of the Arbitration Bill 2009 was amended to permit publication, disclosure or communication of information involving arbitral proceedings or an award if it was to establish a legal right or interest of a party or enforcing or challenging an award in court either within or outside Hong Kong.
  • The reference to a ‘written agreement’ in clause 32 was replaced by ‘arbitration agreement’ to clarify that the provision applied to the appointment of a mediator as provided by the arbitration agreement.

While the legal industry had been proposing a unitary arbitration regime since the mid-1990s, the new Arbitration Ordinance also included a set of optional provisions in schedule 2. These allow parties to opt-in to some or all of the provisions which cover domestic arbitrations under the previous Arbitration Ordinance. The existence of schedule 2 was essentially a result of lobbying by the local construction industry. As a result, the provisions under Schedule 2 will apply for six years until 2017, if an arbitration agreement provides that it is a ‘domestic arbitration’.53 Schedule 2 buttresses the view of some legal minds that the new Arbitration Ordinance is better conceived as evolutionary rather than revolutionary aimed at balancing the needs of all parties.54

The new Arbitration Ordinance also contains provisions that explicitly deal with confidentiality in arbitral proceedings and awards. This makes Hong Kong the first Asian jurisdiction to include such provisions in its arbitration regime. The only other jurisdictions worldwide that have express confidentiality are New Zealand, Australia, Scotland and Spain.55 Insofar as the publication of awards are concerned, the new Arbitration Ordinance allows for this after parties give their consent to do so.

While the impending introduction of a unitary regime was debated, discussed and refined, the International Court of Arbitration of the International Chamber of Commerce decided to open two new Asia offices in 2008, one in Singapore and the other in Hong Kong. The ICC has opened a Secretariat of the Court in Hong Kong complete with a case management team to oversee and administer Asian cases under the ICC Rules of Arbitration.56

China and beyond: boon or bane?

Going forward, the economic opportunities afforded by many Chinese cities will keep Hong Kong’s arbitral community buzzing. In December 2011, during an address in Seoul, Hong Kong’s Secretary for Justice Wong Yan Lung put on record the intention to develop Hong Kong into the international arbitration hub of the Asia-Pacific. To this end, the secretary of justice cited the significant support Hong Kong has received from the Chinese government and China’s Vice Premier Li Keqiang, referring to initiatives implemented in the Chinese city of Qinghai to encourage arbitral institutions in Hong Kong to provide their services to Chinese corporates with a view to popularise the use of Hong Kong law to settle commercial disputes.57

The comments of the secretary for justice in Seoul also reveal the desire for a deeper engagement in the arbitration realm with South Korea. His remarks were unambiguously direct:

I understand Korean businessmen have been resorting to arbitration to resolve disputes for a long time. For international arbitrations, many of you are users of the ICC’s facilities. The Korean legal community is active on the arbitration scene. This is certainly an area where closer co-operation between Hong Kong and Korea can be mutually beneficial and further explored.58

Hong Kong nonetheless faces a perception problem when it comes to Chinese awards. In 2011, this was tangentially raised in the case of Democratic Republic of the Congo v FG Hemisphere Associates FACV Nos 5, 6 & 7 which clarified the law covering sovereign immunity in Hong Kong. On the one hand, the court stated that while immunity applied to the enforcement of court judgments and arbitral awards, they would not apply to arbitral proceedings, meaning sovereign immunity cannot be pleaded as a bar to the jurisdiction of an arbitral tribunal. On the other hand however, the question remains whether the courts in Hong Kong could be prevented from exercising supervisory jurisdiction over a Hong Kong arbitration on the grounds of sovereign immunity. Even though the latter issue was not addressed by the court, some have argued that a claim of sovereign immunity would not stop the courts in Hong Kong from exercising supervisory jurisdiction.59 Equally, some argue that it is unlikely that state-owned Chinese corporations would be allowed to run a sovereign immunity claim a Hong Kong court.60

Hong Kong’s Secretary of Justice Wong Yan Lung also weighed in on the subject in speech made on the occasion of the Opening of the Legal Year in January 2012:

Following the judgment, questions have been raised on the enforceability of arbitral awards in Hong Kong. Views such as those suggesting that Mainland state-owned enterprises stand to enjoy absolute immunity in Hong Kong by virtue of this decision are misconceived, as a Mainland state-owned enterprise is simply not an entity of a foreign state. Further, the fact is arbitration cases affecting foreign states are few in Hong Kong, and legislation has been introduced or enacted in jurisdictions such as the UK and the US to curb activities of buying and enforcing sovereign debts incurred by developing countries. In any event, parties are now better placed to organise their affairs when the law has been put beyond doubt.61

Equally noteworthy, in light of doubts about Hong Kong as a neutral arbitral venue in mainland China-related cases, the Court of Appeal decision in Shandong Hongri Acron Chemical Joint Stock Company Limited v PetroChina International (Hong Kong) Corporation Limited CACV 31/2011 went some way to addressing concerns of a China bias.62 In that case, the Court of Appeal enforced an arbitration award rendered against a mainland China state-owned company, squarely addressing the point about judicial independence and an alleged judicial bias towards China.63

The perception of Hong Kong’s nexus with China is likely to be watched very closely by the arbitral community in the years to come, but if Hong Kong maintains its pro-arbitration norms, these perceptions are unlikely to lead to any decrease in its popularity as an arbitral seat of choice. As the legal community comes to terms with the new Arbitration Ordinance, the HKIAC is also due to introduce new rules of procedure. These measures should ensure that Hong Kong’s arbitration regime remains up-to-date and attractive to business for years to come.

That said, the real test for Hong Kong will rest on how successful Hong Kong is in attracting clients from countries like Korea, which are significantly closer to it than Singapore, to settle arbitration disputes. If Hong Kong manages to assuage perceptions among the international business community of its China bias, it would stand out as the arbitration capital of Asia. Until then, with the induction of the new Arbitration Act into law and coupled with the increasing caseload of both the HKIAC and the Hong Kong branch of the ICC secretariat, Hong Kong is likely to be seen as the venue of choice involving disputes between Chinese and Western companies.64

Conclusion

The theme of competition has defined Singapore and Hong Kong’s arbitration efforts over the last few years in particular. This is unlikely to go away anytime soon. A putatively arbitration-unfriendly judgment in Hong Kong or Singapore in the future will inevitably generate commentaries that devote a line or two for the reader to consider the other as a better arbitration destination. Likewise, a pro-arbitration judgment in either jurisdiction may well be amplified and employed as an agent of one-upmanship.

However, missing in the talk of competition is a much more obvious reality - that economic growth in Asia has powered both Hong Kong and Singapore into the league of premier and top international arbitration destinations of the world. This reality was perhaps captured most succinctly by Dr Michael Pryles, chairman of the SIAC, ‘(i)t is not surprising at all that the number of international arbitrations in Asia is increasing quite nicely. It’s due to the economic development of the region.’65 Speaking to The Australian, Dr Pryles also added that Singapore was benefitting from an unjustified fear among some US corporations that China might interfere in arbitrations conducted in Hong Kong.66

In fact, the Asian arbitration pie is only likely to grow further. Last year, Singapore Law Minister K Shanmugam even offered to support the Kuala Lumpur Regional Centre for Arbitration (KLRCA) which ironically, was the first regional arbitration centre in Asia, having been set up in 1978.67 Such synergistic thinking is likely benefit both Singapore and Malaysia. His counterpart, Malaysian Law Minister Nazri Aziz was also quoted as saying that disputes in niche areas like Islamic banking and Islamic financial matters are likely to be arbitrated in Kuala Lumpur. He added, ‘Singapore and Kuala Lumpur are too near. We might as well have a good understanding and cooperation. Its better to work together rather than start competing.’68 While it remains to be seen if Hong Kong or Singapore will go down this road, healthy competition between two of the world’s freest economies, at the centre of the most economically dynamic region in the world today, should not be unexpected.

Notes

1
‘ICC International Court of Arbitration to open offices in Asia’, ICC Press Release, 12 Mar 2008. Available online at: www.iccwbo.org/id19548/index.html

2‘Does Hong Kong’s place in international arbitration remain secure?’, Commercial Dispute Resolution, 4 Aug 2011. Available online at: www.cdr-news.com/component/content/article/1255-does-hong-kongs-place-in-international-arbitration-remain-secure

3‘Singapore challenges Hong Kong as international arbitration hub’, Asialaw, April 2008. Available online at: www.asialaw.com/Article/1970762/Channel/16680/Singapore-challenging-Hong-Kong-as-an-international-arbitration-hub.html

4Ibid.

5‘Asia’s Arbitration Centres - Hong Kong, China and Singapore’, arbitration fact sheet published by Mayer Brown JSM. Available online at: www.mayerbrown.com/publications/article.asp?id=11608&nid=6

6Mohan R Pillay, ‘The Singapore Arbitration Regime 2002 - Then, Now and Why’ [2003] I.C.L.R. 91

7Bruce Harris, RoWong Planterose and Jonathan Tecks, The Arbitration Act 1996: A Commentary, 3rd edition (Blackwell Publishing: 2003) p. 1

8Singapore Parliamentary Reports, vol 63, col. 627, 31 Oct 1994.

9Singapore Parliamentary Reports, vol 73, col. 2214, 5 Oct 2001.

10The amendment was introduced via the Legal Professional (Amendment) Bill 2004, passed in Parliament on 14 September 2004.

11This amendment was passed in March 1992 following a High Court decision in Turner (East Asia) Pte Ltd v Builder’s Federal (Hong Kong) Ltd & Anor. [1988] 2 MLJ 280.

12‘Government accepts key recommendations of Justice V K Rajah’s committee on the comprehensive review of legal services sector’, Singapore Government Press Release, 6 Dec 2007. Available online at: http://app2.mlaw.gov.sg/News/tabid/204/currentpage/12/Default.aspx?ItemId=95

13‘Singapore may be arbitration centre’, The Straits Times, 30 April 1987.

14Lawrence Boo, ‘The Law and Practice of Arbitration in Singapore’. Adapted from a report published in the ICCA International Handbook on Commercial Arbitration updated jointly with Mr Michael Hwang and Ms Amy Lai published in ICCA Supplement No.38, April 2003 (Kluwer). Available online at: www.aseanlawassociation.org/docs/w4_sing1.pdf.

15‘The case for Singapore as a global arbitration hub’, The Straits Times, 6 Mar 2009.

16‘Singapore looks to be international arbitration hub’, Government of Singapore Press Release, 24 Jan 2010 Available online at www.thegovmonitor.com/world_news/asia/singapore-looks-to-be-international-arbitration-hub-22072.html

17Speech by Mr K Shanmugam, Minister for Law and Second Minister for Home Affairs, at the inaugural Singapore International Arbitration Forum, 21 Jan 2010. Speech available online at: www.news.gov.sg/public/sgpc/en/media_releases/agencies/minlaw/speech/S-20100121-2.html

18‘Permanent Court of Arbitration to set up facility in Singapore’, Channelnewsasia.com, 10 Sep 2007. Available online at: www.channelnewsasia.com/stories/singaporelocalnews/view/298958/1/.html

19‘Singapore aims to be at the forefront of international arbitration’, Channelnewsasia.com, 1 Nov 2011. Available online at: www.channelnewsasia.com/stories/singaporelocalnews/view/1162813/1/.html

20‘Number of new international arbitration cases in S’pore cases may rise’, Channelnewsasia.com, 20 Jan 2010. Available online at: www.channelnewsasia.com/stories/singaporelocalnews/view/1031963/1/.html

21‘Talkingpoint: Arbitration in Singapore’, Financierworldwide.com, June 2011. Available online at: www.financierworldwide.com/article.php?id=8215&page=5

22‘Arbitration cases drop 5 per cent last year’, TODAY, 6 Mar 2012. Available online at: www.todayonline.com/Business/EDC120306-0000210/Arbitration-cases-drop-5-last-year

23Executive Summaries of SAL Conference 2011: Developments in Singapore Law 2006-2011: Trends and Perspectives. Available online at: www.sal.org.sg/conference/salconference/PDFs/DAY per cent201 per cent20(Aribtration per cent20law per cent20and per cent20practice per cent20and per cent20Contract per cent20law.pdf

24‘Stepping up to Singapore: LCIA’s Indian arbitration mission’, Commercial Dispute Resolution, 29 Apr 2010. Available online at: www.cdr-news.com/component/content/article/706-stealing-from-singapore-lcias-indian-arbitration-mission

25‘KL Arbitration Centre goes global, taps India’, New Straits Times, 29 Jan 2012. Available online at: www.nst.com.my/latest/kl-arbitration-centre-goes-global-taps-india-1.38801

26‘Singapore new hub for arbitration services’, Confederation of Indian Industry News Update, 21 Jan 2012. Available online at: www.cii.in/PressreleasesDetail.aspx?
enc=xiAAE+wYGkOJw116GHEqzxmkSwi/rUU2nMzHqQlVdZleCGu/
BRlzZwqyIJ6hpL0tw+vVFNBeccU+qUEcXFXH/xpNKsO2EswM1NMJa0K/6ACHw
7rmBLQZzhrNh2vLtFXsgyqapN+ps5CFNXNJDlQ6Lw

27‘Singapore aims to be at forefront of international arbitration’ Channelnewsasia.com, 1 Nov 2011. Available online at: www.channelnewsasia.com/stories/singaporelocalnews/view/1162813/1/.html

28Opening speech by Mr K Shanmugam, Minister of Foreign Affairs and Law, at the Ministry of Law’s Arbitration Dialogue on 1 Nov 2011. Speech available online at: www.news.gov.sg/public/sgpc/en/media_releases/agencies/minlaw/speech/S-20111101-3/AttachmentPar/0/file/Minister’s per cent20Speech per cent20at per cent20Arbitration per cent20Dialogue per cent202011.pdf

29Second Reading Speech by Law Minister K Shanmugam on the International Arbitration (Amendment) Bill, Ministry of Law Press Release, 19 Oct 2009. Available online at: http://app2.mlaw.gov.sg/News/tabid/204/Default.aspx?ItemId=439

30Ibid.

31‘Singapore: Singapore as a preferred venue to resolve disputes in Asia?’, O’Melveny & Myers LLP Publication, 1 Dec 2010. Available online at: www.mondaq.com/article.asp?articleid=116774

32‘Public Consultation on Proposed Amendments to the International Arbitration Act and Proposed Enactment of the Foreign Limitation Periods Act’, Singapore Ministry of Law Press Release, 20 Oct 2011. Available online at: http://app2.mlaw.gov.sg/News/tabid/204/Default.aspx?ItemId=590

33‘Review of the International Arbitration Act: Proposals for Public Consultation’, Ministry of Law Press Release, 20 Oct 2011. Paper available online at: http://app2.mlaw.gov.sg/LinkClick.aspx?fileticket=czv16BYZjNQ per cent3d&tabid=204

34James Gwartney, Robert Lawson and Joshua Hall, Economic Freedom of the World: 2011 Annual Report, (Fraser Institute:2011), p. 82. Available online at: www.fraserinstitute.org/uploadedFiles/fraser-ca/Content/research-news/research/publications/economic-freedom-of-the-world-2011.pdf

352011 World Competitiveness Yearbook 2001 results. Available online at: www.imd.org/research/publications/wcy/upload/scoreboard.pdf

36Ibid.

37Speech by Secretary of Justice Wong Yan Lung at a business luncheon co-organised by the Asian Strategy and Leadership Institute and the Hong Kong Economic and Trade Office in Singapore on 25 Nov 2010. Speech available online at: www.doj.gov.hk/eng/public/pdf/2010/pr20101125e2.pdf

38Speech by Secretary of Justice Wong Yan Lung at a business luncheon jointly organised by the Hong Kong Economic and Trade Office, Brussels and the Hong Kong Trade Development Council on 4 Oct 2011. Available online at: www.doj.gov.hk/eng/public/pdf/2011/pr20111006e2.pdf

39Ibid.

40Derek Roebuck, ‘Arbitration in Early Hong Kong:1835 - 1867’, 63 Arbitration (November 1997) 263, p 265.

41Neil Kaplan, Arbitration in Hong Kong: A Practical Guide, (Sweet and Maxwell: 2003), p. 85.

42Neil Kaplan, ‘The History and Development of Arbitration in Hong Kong’, Yearbook of International Financial and Economic Law 1996, 1 Y.B Int’l Fin & Econ. L. 203 (1996), p. 207

43Neil Kaplan, Arbitration in Hong Kong: A Practical Guide, (Sweet and Maxwell: 2003), p.86

44Singapore Parliamentary Reports, vol 63, col. 626, 31 Oct 1994.

45Speech by Secretary of Justice Wong Yan Lung at the Ceremonial opening of the Legal Year 2012. Available online at: www.doj.gov.hk/eng/public/pdf/2012/pr20120109e.pdf

46The Law Reform Commission of Hong Kong Paper: Report on the Adoption of UNCITRAL Model Law, paragraph 1.9. Available online at: www.hkreform.gov.hk/en/docs/runcitral-e.doc

471996 Report of the Hong Kong International Arbitration Centre Committee on Arbitration Law, para 1.1.9. As reproduced at Appendix 1 in John Choong and Romesh Weeramantry, The Hong Kong Arbitration Ordinance: Commentary and Annotations, (Sweet and Maxwell: 2011).

482003 Report of the Committee on Hong Kong Arbitration Law, para 5.5 and 5.6. As reproduced at Appendix 2 in John Choong and Romesh Weeramantry, The Hong Kong Arbitration Ordinance: Commentary and Annotations, (Sweet and Maxwell: 2011).

49Michael Moser and Teresa Cheng, Hong Kong Arbitration: A User’s Guide, (HKIAC: 2008), p. 211.

502007 Consultation Paper on the Reform of the Law of Arbitration in Hong Kong and Draft Arbitration Bill, p. 4. Available online at: www.doj.gov.hk/eng/public/pdf/2007/arbitration.pdf.

51See Hong Kong Legislative Committee Paper No. CB(2)2546/08-09(05),’ Arbitration Practices adopted by Hong Kong’s major competitors’. Available online at: www.legco.gov.hk/yr08-09/english/bc/bc59/papers/bc591005cb2-2546-5-e.pdf

52John Choong and Romesh Weeramantry, The Hong Kong Arbitration Ordinance: Commentary and Annotations, (Sweet and Maxwell:2011), p. 21

53‘Hong Kong’s New Arbitration Ordinance’, Client Update: Tanner De Witt Solicitors. Available online at: www.tannerdewitt.com/media/publications/hong-kong-new-arbitration-ordinance.php

54‘Hong Kong’s New Arbitration Ordinance: An innovative approach in a highly competitive international arbitration market’, Practical Law Company, 1 Mar 2011. Available online at: http://arbitration.practicallaw.com/2-505-8706

55‘Hong Kong Strengthens Position as Leading Jurisdiction for International Arbitration with Major Overhaul of Legislative Framework’, Jones Day Publications, July 2011. Available online at: www.jonesday.com/hong_kong_strengthens_position

56‘ICC International Court of Arbitration to open offices in Asia’, ICC Press Release, 12 Mar 2008. Available online at: www.iccwbo.org/id19548/index.html

57‘Hong Kong grows as International Arbitration Centre’, Tax-News: Global Tax News, 12 Dec 2011. Available online at: www.tax-news.com/news/Hong_Kong_Grows_As_International_Arbitration_Centre____52899.html

58Speech by Secretary of Justice Wong Yan Lung, ‘Role of Hong Kong as East Asia rises - A Legal Perspective’ in Seoul, South Korea on 8 Dec 2011. Available online at: www.doj.gov.hk/eng/public/pdf/2011/pr20111208e2.pdf

59‘Hong Kong’s arbitration year in review: A Christmas Blog’, Practice Source: Kluwer Law International. Available online at: http://kluwer.practicesource.com/blog/2011/hong-kong per centE2 per cent80 per cent99s-arbitration-year-in-review-a-christmas-blog/

60‘Who wears the crown? Immunity and the identification of the sovereign in Hong Kong’, Kluwer Arbitration Blog, 17 Aug 2011. Available online at: http://kluwerarbitrationblog.com/blog/2011/08/17/who-wears-the-crown-immunity-and-the-identification-of-the-sovereign-in-hong-kong/

61Speech by Secretary of Justice Wong Yan Lung at the Ceremonial opening of the Legal Year 2012. Available online at: www.doj.gov.hk/eng/public/pdf/2012/pr20120109e.pdf

62‘Singapore gains as Hong Kong follows China rule on Immunity’, Bloomberg, 30 Aug 2011. Available online at: http://mobile.bloomberg.com/news/2011-08-31/singapore-to-gain-as-hong-kong-follows-china-s-laws-on-sovereign-immunity

63Ibid.

64‘New Arbitration Law passed in Hong Kong’, Fullbright Briefing, 7 Dec 2010. Available online at: www.fulbright.com/index.cfm?fuseaction=publications.detail&pub_id=4740&site_id=494

65‘Aussie at the helm as arbitration takes off’, The Australian, 8 April 2011. Available online at: www.theaustralian.com.au/business/legal-affairs/aussie-at-the-helm-as-arbitration-takes-off/story-e6frg97x-1226035635455

66Ibid.

67‘KL to tap Singapore’s arbitration experience’, The Straits Times, 16 Sep 2011. Available online at: www.asianewsnet.net/home/news.php?sec=2&id=21788

68Ibid.

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