Hong Kong Construction Arbitration

Hong Kong remains a pre-eminent and growing international centre of excellence for arbitration generally, and for the resolution of construction disputes in particular.

In this article, we present an overview of Hong Kong as a centre for dispute resolution for construction disputes. We also highlight a number of interesting and important developments and trends. These include recent relevant Hong Kong court judgments, state-of-the-art provisions for emergency arbitration, a consultation in relation to third-party funding of arbitrations, and a consultation in relation to security for payment legislation for the construction industry.

Before turning to the detail, however, it is worth highlighting that both domestic and international arbitration continues to flourish in Hong Kong.

The 2015 International Arbitration Survey published by Queen Mary College University of London, for example, found that Hong Kong was the third most frequently used seat of arbitration worldwide over the preceding five-year period (behind only London and Paris) and that it remained the third most popular choice in 2015.

In addition, the main Hong Kong arbitration institute, the Hong Kong International Arbitration Centre (HKIAC) was recognised as being the third most preferred arbitration institute worldwide, ranked only behind the ICC and LCIA. The HKIAC was further ranked as the most improved arbitration institute worldwide over the previous five-year period.

There is, however, no requirement to use the rules of the HKIAC. Parties in Hong Kong are free to conduct their arbitrations on an ad hoc basis (using, for example, the UNCITRAL Rules) or pursuant to the arbitral rules of any arbitral institution.

A number of key international arbitral bodies have also established offices and presences in Hong Kong in order to serve the Asia Pacific region. These include the ICC and CIETAC. The Permanent Court of Arbitration in The Hague also has a ‘host country’ agreement with Hong Kong.

The Hong Kong judiciary remains highly supportive of arbitration. The courts have handed down a number of pro-arbitration related judgments over the past year. These have, for example, upheld the constitutionality of provisions in the Arbitration Ordinance, granted anti-suit injunctions to restrain proceedings where there was an arbitration agreement, strengthened the cost penalties for parties opposing stays to arbitration, and stressed the importance of the enforcement of arbitral awards.

The rule of law remains strong and unimpeached in Hong Kong. There has been no deterioration in the Hong Kong system that should deter or trouble parties considering using Hong Kong as their seat of arbitration. This applies equally to non-Chinese parties who are in dispute with Hong Kong or mainland Chinese entities.

Hong Kong arbitration and the Hong Kong courts do not favour local or Chinese parties. There can, however, be a potential advantage for non-Chinese parties in having the seat of arbitration in Hong Kong as there is a dedicated bilateral enforcement regime between Hong and the PRC that makes it easier to enforce a Hong Kong arbitration award in mainland China against Chinese assets.

Construction disputes in Hong Kong in overview

The culture of the Hong Kong construction industry

The construction and engineering industries worldwide have a tendency to generate disputes. Hong Kong has been no exception to this. The combination of keen prices and old-fashioned risk allocation (where risk is offloaded on to contractors and consultants) has given rise to an adversarial industry with a ‘claims culture’.

Significant innovations and reforms are currently in train in Hong Kong to improve this industry culture, and to manage both disputes and risk in a more efficient and cooperative manner. For example, as we discuss below, the Hong Kong government is systematically introducing the NEC form of contract for public procurement projects. Work is also under way to introduce security for payment legislation, which will contain some form of statutory adjudication procedure for use prior to the completion of a project.

It should be noted, however, that even prior to the more recent developments highlighted above, the Hong Kong construction industry had already become increasingly successful at managing and resolving disputes without having to resort to formal legal proceedings. The majority of disputes are resolved by negotiation, with claims often being used by all parties as bargaining chips when resolving the final account for the project.

The use of ADR and other techniques to reduce and manage disputes

There has been consistent growth in the use of ADR methods both to avoid disputes crystallising in the first place, and, where disputes have arisen, to resolve them without formal legal proceedings.

Mediation has been used successfully to resolve disputes for at least 20 years in Hong Kong including in relation to major infrastructure projects such as bridges and also the Hong Kong International Airport.

There is a formal requirement for parties to attempt mediation before pursuing proceedings in the Hong Kong courts but there is no such requirement in relation to pursuing arbitral proceedings. It is, however, common for construction contracts to include a multi-tiered dispute resolution mechanism, with mediation as one of the intermediate tiers. The Hong Kong courts will uphold a contractual mediation agreement provided that it is sufficiently clear and specifies details such as the Mediation Rules to be applied, and the identity of an appointing body to nominate the mediator in default of the parties’ agreement.

There is increasing use in major projects of either a dispute resolution adviser (DRA) or a dispute resolution board (DRB) in order to try to contain disputes and prevent them from escalating.

The DRB system (which is typically adopted internationally in FIDIC contracts) involves an independent panel that considers disputes that are referred to it during the lifetime of the relevant project. A DRB decision is generally binding on the parties on an interim basis – unless and until it is replaced later on by an arbitration award rendered by a separate arbitral tribunal.

The DRA system (which was developed in Hong Kong in the early 1980s) involves an independent professional being involved with the project from start to finish. The DRA holds regular meetings with the key stakeholders (at least the owner and the main contractor) and discusses issues and problems that are arising. The appointed DRA can advise and cajole the parties but generally cannot make any binding determination in relation to disputes or issues. A good DRA can therefore help the parties to avoid disputes or find ways to resolve problems before they escalate.

Arbitration remains the main forum for formal legal proceedings for construction

Arbitration remains the main method of dispute resolution for disputes between owners and main contractors, and also for disputes between main contractors and principal sub-contractors. This is the case for both public sector procurement as well as private sector projects. Arbitration clauses are found in most, if not all, of the Hong Kong standard form contracts commonly in use as well as in the major international standard forms of contracts (such as the FIDIC Rainbow suite) commonly encountered.

Where construction disputes are resolved by the Hong Kong courts they tend to involve disputes at the lower tiers of the construction process (sub-contractors and sub-sub-contractors) where contracts are often less well developed and less sophisticated.

Recent ‘structural’ developments in construction arbitration

As highlighted above, there are a number of important developments and innovations in Hong Kong under way that are intended to benefit the construction industry both domestically and internationally. These developments can be broadly broken down into three main sub-sets:

Developments that aim to make sure that both domestic and international arbitrations held in Hong Kong continue to have the benefit of an international state-of-the-art arbitral regime. These developments include:

• the adoption of a particularly sophisticated and effective regime for emergency arbitrations seated in Hong Kong; and
• the ongoing consultation in relation to permitting third-party funding of arbitrations seated in Hong Kong.
• Developments that aim to help the Hong Kong construction market to manage risks more effectively, and to reduce disputes. These developments include:
• the adoption of the NEC form of contract; and
• the work being done in relation to future security for payment legislation.
• Legislative changes in Hong Kong substantive law that affect the construction industry in Hong Kong. These developments include the entry into effect of:
• the Hong Kong Competition Ordinance; and
• the entry into effect of the Hong Kong Contracts (Rights of Third Parties) Ordinance (which extends contractual rights in some circumstances to third parties that are identified in a contract but are not themselves contracting parties).

We will address each of these briefly in turn.

Developments to benefit parties in arbitrations

Emergency arbitrations

The purpose of an emergency arbitration is to enable a party to an arbitration agreement to obtain urgent interim relief in the period before the main arbitral tribunal is constituted – without having to have recourse to national courts.

In essence, a party can, pending the appointment of the main arbitral tribunal, apply for an emergency arbitrator to be appointed solely to deal with its urgent application for interim relief. The emergency arbitrator appointed cannot deal with any substantive issues and cannot sit as a member of the main arbitral tribunal. The emergency arbitrator therefore only has jurisdiction to deal with the relevant urgent application for interim relief. Further, the main tribunal can, once it is constituted, vary or discharge any decision made by the emergency arbitrator.

The system of emergency arbitration has been a welcome addition to the international arbitration tool kit. It has, however, been somewhat weakened in many jurisdictions by problems with the enforceability of decisions rendered by an emergency arbitrator. The problems that have been encountered are that the courts in some jurisdictions have been unable or unwilling to enforce an emergency arbitration decision on the grounds that it does not constitute a ‘final and binding’ arbitral award.

This problem has been solved in Hong Kong as the Arbitration Ordinance has been amended (by Sections 22A-B) to provide that a decision of an emergency arbitrator in relation to interim relief shall be enforceable by the Hong Kong courts to provide that a decision of an emergency arbitrator in relation to interim relief shall be enforceable by the Hong Kong courts with leave in the same way an order or direction of the court having the same effect does. If leave is granted, the Hong Kong courts can enter a judgment in terms of the emergency relief granted.

Emergency relief granted by an emergency arbitrator can be enforced under this mechanism irrespective of whether it was granted in or outside Hong Kong. Two statutory conditions must, however, be satisfied. The first is that the emergency arbitrator must have been appointed under emergency arbitration rules agreed to or adopted by the parties. The second is that the relief granted must consist of temporary measures (including an injunction) by which the emergency arbitrator orders a party to do one or more of the following:

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

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

(c) provide a means of preserving assets out of which a subsequent award made by an arbitral tribunal may be satisfied;

(d) preserve evidence that may be relevant and material to resolving the dispute;

(e) give security in connection with anything to be done under paragraph (a), (b), (c) or (d);

(f)  give security for the costs of the arbitration.

This mechanism for the enforcement of emergency arbitration decisions fills a lacuna that exists in many other jurisdictions.

Separate from this legislative development, it is also worth noting that both CIETAC Hong Kong¹ and the HKIAC have introduced emergency arbitration procedures into their arbitration rules.

The HKIAC emergency arbitration procedure (see Schedule 4 of the HIKIAC Rules) provides for an emergency arbitrator to be appointed within two days of a request being made, and for the emergency arbitrator to render his or her decision (including costs) within a further 15 days. Importantly, a party requesting an emergency arbitrator must commence the main arbitration before or at the same time as requesting the emergency appointment.

The details of this HKIAC emergency arbitration procedure are beyond the scope of this brief summary. However, two points are worth highlighting. The first is that the emergency arbitration procedure applies to all arbitrations under the HKIAC Rules irrespective of whether the relevant arbitration agreement pre or post-dates the inclusion of the emergency arbitration procedure in the Rules.² The second is that the HKIAC Rules expressly provide that the emergency arbitrator can continue to render a decision on emergency relief even if the main tribunal is constituted part way through the emergency arbitration procedure. This contrasts with the position under certain other sets of rules, where the emergency arbitrator is rendered functus officio as soon as the main tribunal is constituted. The HKIAC approach has significant merit as it prevents time and costs being wasted by allowing the emergency arbitration to be concluded rather than abandoned part way through. The main tribunal, however, will not be bound by the emergency decision and can vary or discharge it.

Consultation regarding third-party funding of arbitrations in Hong Kong

The Hong Kong Law Reform commission published a report in October 2015 recommending that legislative changes be enacted to permit third-party funding of arbitrations. This is a welcome development given that the funding costs of the arbitral process impose significant financial burdens on parties.

Hong Kong, as a common law jurisdiction, has a legal infrastructure that imposes restrictions on the extent to which third parties can currently fund legal proceedings. There has, however, over the past decade, been a movement towards some degree of liberalisation of these restrictions.

The Hong Kong Court of Final Appeal in a unanimous decision in Unruh v Seeberger³ considered the modern application of the long-standing restrictions on ‘champerty and maintenance’. The Court of Final Appeal concluded that the traditional legal policies underlying champerty and maintenance continue to apply but that they must be substantially qualified by other (more modern) considerations. The Court concluded that restrictions on champerty and maintenance still apply in Hong Kong (in order to protect the integrity of the legal process) but had shrunk in application.

Importantly, the application of champerty and maintenance in Hong Kong arbitrations, and therefore the permissibility of third-party funding of arbitrations, was expressly left open by the court in Unruh.

The restrictions on third-party funding potentially deny access to justice in some cases and appear hard to justify in the modern international arbitration and business environments. A wider and more flexible approach to funding and financing would benefit some potential parties.

On the other hand, it is important also to recognise that third-party funding of arbitration does raise serious and legitimate concerns in relation to both ethical conduct, and also the potential implications for the other party to the arbitration. Significant care, therefore, needs to be taken when permitting third-party funding in order to ensure that it is structured in a way that delivers benefits but does not erode ethical standards and confidence in the underlying system of arbitration.

The Hong Kong Law Reform Commission has therefore launched a public consultation exercise to consider, among other things, whether third-party funding should be permitted in arbitration and, if so, whether corresponding ethical and financial standards should be introduced. The consultation also addresses issues such as extra-territorial effect, privilege and adverse costs orders against the funders.

The consultation paper contains not only a useful analysis of the relevant considerations for Hong Kong but also of practices in other jurisdictions (including England and Wales, Australia, France, Germany, the United States, China and Singapore).

The consultation is likely to lead to constructive changes in funding arbitrations, which in turn ought, to an extent, to facilitate greater use of arbitration in some circumstances, and ease the burden on some parties.

Developments to benefit the construction sector in Hong Kong

The introduction of the NEC contract

The NEC 3 family of contracts represent a radically different approach to contracting and managing projects from the traditional model adopted in Hong Kong. It is beyond the scope of this article to review the differences in detail but they represent a fundamental shift in the approach to the allocation and management of risk.

As was highlighted above, Hong Kong has traditionally taken an adversarial approach to risk by using contracts in which employers offload risk by allocating it to the main contractor and consultants without reference to who is best able either to manage or bear the risks concerned. This has tended to promote an inefficient procurement regime, and a claims culture.

The NEC 3 contracts, on the other hand, take a much more nuanced and balanced approach to both risk allocation and management. A greater level of risk is accepted by employers than has been the norm in Hong Kong. This does not, however, mean that risk has simply been transferred back to employers from other parties. Instead, risk and reward are shared in a sophisticated manner that seeks to promote its effective management, and that gives incentives to all concerned to deliver the project on time and in budget.

It is also important to note that NEC contracts do not simply represent a ‘contractual’ shift in approach to risk and reward but also require a radically different approach to construction and project management. The emphasis is on early identification of potential problems and a collegiate approach to management and problem solving. NEC contracts must be managed and administered in a very different way from more traditional contracts. NEC contracts have proved successful in many jurisdictions, although they are not, of course, a panacea for all ills and a great deal depends upon how they are actually implemented in each individual project.

The NEC3 forms involve a three-tiered dispute resolution system. Disputes are first referred to a DRA. The second tier can involve either a voluntary mediation or adjudication and the third tier is arbitration.

The Hong Kong government trialled NEC 3 contracts on a number of projects (including a HK$2 billion community hospital project at Tin Shui Wah). Following the trials, the Hong Kong government has announced that it will use NEC 3 for all contracts tendered and let in 2015/2016. Two other important employers have also been trialling it in Hong Kong – the Hong Kong Jockey Club and China Light & Power.

It should be noted that the use of adjudication in Hong Kong NEC 3 contracts is very much in its infancy and the adjudication provisions have sometimes been deleted. This is because there has not been the legal infrastructure or skilled resources to implement contractual adjudication effectively or on a wide-scale basis. That, however, is starting to change as bodies in Hong Kong have started to introduce a training and qualification regime for adjudicators.

It is not yet clear whether the introduction of NEC contracts will, by itself, jumpstart a significant movement towards adjudication in Hong Kong. On balance, however, it is relatively unlikely to do so as there is currently no tailored legal structure for the enforcement of adjudication decisions in Hong Kong. As a result, the enforcement of adjudication decisions is ultimately a matter of contract. In this sense adjudication can be considered to be akin to agreeing to have a dispute determined by way of ‘expert determination’. The courts will generally give effect to these forms of dispute resolution agreements provided that they are properly drafted.

In the absence of security for payment legislation (as to which, see below), it seems likely that the uptake of contractually agreed adjudication will remain low. As such, the dispute resolution mechanisms in NEC contracts are not likely by themselves to have any significant impact upon dispute resolution methods in Hong Kong.

The extent to which NEC contracts impact upon the number and type of construction disputes reaching arbitration is likely instead to depend, in large measure, on how effective those involved with individual projects are. If, the project participants implement NEC contracts effectively, it should reduce the number of disputes but one of the biggest risks for those involved in an NEC 3 project is an assumption that they can carry on with a ‘business as normal’ approach.

Forthcoming security for payment legislation

The Hong Kong government is committed to introducing security for payment legislation for the construction industry in the reasonably foreseeable future. As a part of the preparation for this, government has recently undertaken a public consultation exercise on the basis of a suggested outline scheme.

The primary objective of the proposed legislation is to make sure that cash starts to flow properly down the supply chain during a project, and is not held onto by those towards the top of the chain. Typically, employers tend to be, at best, slow to pay main contractors throughout the project, and main contractors, as a result, tend then to hold onto their cash and to be very slow in paying their sub-contractors, and so on. In general terms, the lower down the supply chain a contractor is, the greater the cash flow problems experienced.

The outline scheme proposed by government for the consultation exercise last year suggested a compulsory statutory scheme for both public and private sector procurement (although small value private sector contracts would be exempt).

The key ingredients of the suggested scheme included compulsory provisions that:

• require interim payments to be made within 60 days and final payments within 120 days;
• provide a right for parties to suspend work if they are not paid;
• prohibit ‘pay when paid’ provisions; and
• introduce a statutory adjudication scheme for disputes prior to completion of the project that concern payment, value of works, or extensions of time, under which the adjudicator’s decision would be binding unless challenged in an arbitration after completion of the works.

The results of the public consultation are not yet known but it is anticipated that draft legislation will be prepared and enacted by government.

Until the scope and details of the final proposed scheme are known, it is difficult to assess what impact the security for payment scheme will have on dispute resolution within the construction industry.

The experience in some other jurisdictions, however, is that statutory adjudication can reduce significantly the volume of disputes that proceed to arbitration post completion of the works. This has been particularly the case in jurisdictions such and England and Wales where the security for payment legislation is widely drafted and strictly enforced by the courts.

It is therefore possible that Hong Kong may ultimately see a reduction in construction arbitration in a few years’ time, once security for payment legislation has been implemented. At this stage, however, no draft Ordinance has yet been tabled.

General developments that impact the Hong Kong construction industry

The Hong Kong Competition Ordinance

The Hong Kong Competition Ordinance has now come into force and will have a significant impact on business in the construction industry.

The Hong Kong Competition Commission has identified four types of arrangements that it considers to be serious examples of anti-competitive behaviour:

• fixing prices with competitors;
• restricting output of goods or service with competitors;
• sharing markets, territories or customer with competitors; and
• rigging bids with competitors.

It should be stressed, however, that these are highlighted examples only, and that the Ordinance outlaws anti-competitive conduct in a wider manner.

Participants in the construction industry will need to pay particular attention to pre-bid and tendering arrangements.

Special care will also need to be given where (as is common in Hong Kong for many legitimate reasons) two or more separate contractors wish to bid for a project on a cooperative joint venture basis. Joint ventures of this type are less likely to fall foul of the Competition Ordnance if the parties can demonstrate that a joint venture is needed either because the individual companies would not be able to undertake the project by themselves or because of the scale and nature of the project itself.

Third Parties Contract Ordinance

The Contracts (Rights of Third Parties) Ordinance came into effect on 1 January 2016. It impacts upon the common law doctrine of privity of contract.

In outline, the Ordinance creates a statutory right for a third party, who is not a party to the contract but is adequately identified in the contract by name or description or class, to enforce obligations in the contract provided that the contract contains either (i) an express term to that effect, or (ii) a term that purports to confer a benefit on the third party unless the contracting parties, on a proper construction, did not intend for the third party to have the right to enforce.

The Ordinance also gives a third party, who has an enforceable third-party obligation, the right to bring arbitration proceedings where the relevant contract contains an arbitration agreement. The resulting arbitration award will be enforceable in Hong Kong but may not necessarily be enforceable internationally (where enforcement may be restricted to parties who are signatories to the arbitration agreement).

The Ordinance does not, however, apply either to contracts entered into prior to January this year or to contracts that include a provision opting out of the Ordinance. It is therefore doubtful whether this legislation will have much effect, as it is likely that construction employers will simply ‘opt out’ to avoid claims being brought against them by, for example, sub-contractors.

Recent Hong Kong judgments related to construction arbitration

The enforcement of arbitration awards and arbitration agreements

In KB v S,⁴ the court outlined the approach adopted in Hong Kong towards enforcement of arbitration awards and arbitration agreements by reference to 10 principles:

• The primary aim of the court is to facilitate the arbitral process and to assist with enforcement of arbitral awards.
• Under the Arbitration Ordinance (the Ordinance), the court should interfere in the arbitration of the dispute only as expressly provided for in the Ordinance.
• Subject to the observance of the safeguards that are necessary in the public interest, the parties to a dispute should be free to agree on how their dispute should be resolved.
• Enforcement of arbitral awards should be ‘almost a matter of administrative procedure’ and the courts should be ‘as mechanistic as possible’.
• The courts are prepared to enforce awards except where complaints of substance can be made good. The party opposing enforcement has to show a real risk of prejudice and that its rights are shown to have been violated in a material way.
• In dealing with applications to set aside an arbitral award, or to refuse enforcement of an award, whether on the ground of not having been given notice of the arbitral proceedings, inability to present one’s case, or that the composition of the tribunal or the arbitral procedure was not in accordance with the parties’ agreement, the court is concerned with the structural integrity of the arbitration proceedings. In this regard, the conduct complained of ‘must be serious, even egregious’, before the court would find that there was an error sufficiently serious so as to have undermined due process.
• In considering whether or not to refuse the enforcement of the award, the court does not look into the merits or at the underlying transaction.
• Failure to make prompt objection to the tribunal or the supervisory court may constitute estoppel or want of bona fides.
• Even if sufficient grounds are made out either to refuse enforcement or to set aside an arbitral award, the court has a residual discretion and may nevertheless enforce the award despite the proven existence of a valid ground.
• ...parties to the arbitration have a duty of good faith, or to act bona fide.

Indemnity costs ordered against unsuccessful parties in attacks on arbitrations

The usual practice of the Hong Kong courts is now to award costs on an indemnity basis (in effect requiring the loser to pay a higher percentage of the winner’s costs) where a party unsuccessfully resists enforcement of an arbitration award (see KB v S above) or a stay to arbitration (see, Bluegold Investment Holdings Ltd v Kwan Chun Fun Calvin).⁵

Constitutional challenge to the Ordinance rejected

The court in Wing Bo Building Construction Company Limited v Discreet Limited⁶ has recently rejected a constitutional challenge to the provisions in the Ordinance that prevent appeals from arbitration awards. The plaintiff in that case argued that section 20(8) of the Ordinance (which adopts article 8 of the UNCITRAL Model Law) was incompatible with the Basic Law, Hong Kong’s constitutional document. The court rejected the argument and upheld the constitutionality of section 20(8). This decision comes just three months after the Court of Appeal rejected a similar constitutional challenge to Section 81(4), China International Fund Limited v Dennis Lau & Ng Chun Man Architects & Engineers (HK) Limited v Secretary for Justice,⁷ and affirms that Hong Kong’s arbitration regime is constitutionally sound.

Grant of an anti-suit injunction by Hong Kong courts

Section 45(2) of the Ordinance gives the Hong Kong courts the power to grant an interim measure in relation to any arbitral proceedings that have been commenced either in or outside Hong Kong.

In Ever Judger Holding Co Ltd v Kroman Celik Sanayii Anonim Sirketi,⁸ the Hong Kong courts granted an anti-suit injunction to restrain a party from pursuing Turkish court proceedings in breach of an arbitration clause.

Conclusion

Hong Kong remains a major and world class centre for both arbitration generally, and construction arbitration in particular. The legal infrastructure for arbitration and also for the construction industry remains robust and investment in it is continuing. Whatever the wider political issues, rule of law remains intact and both the courts and arbitrators remain independent, impartial and neutral.

The emphasis of recent developments affecting arbitration in Hong Kong has been on: further reinforcing the integrity of arbitration system (by stressing the enforceability of both arbitration agreements and awards); and ensuring that the arbitral system remains at the cutting edge (by, for example, introducing enforcement of emergency arbitration decisions, and a public consultation on permitting third-party funding of arbitrations).

In terms of construction disputes, arbitration remains the primary system for dispute resolution and that is unlikely to change in the next couple of years. Recent developments are primarily aimed at: changing the approach to risk allocation and management (through, for example, the introduction of the NEC 3 contract); and dispute avoidance or reduction techniques (such as the future introduction of security for payment legislation). These developments will hopefully lead to fewer and more contained construction disputes in the future. It will, however, take time to see if this eventuates.

Overall, one can expect to see the current trends continuing over the foreseeable future.

King & Wood Mallesons thank Mr Julian Cohen of Parkside Chambers for his invaluable input into this chapter.

Notes

1. The CIETAC emergency arbitration procedures are effective where a CIETAC arbitration is administered and seated in Hong Kong.  It is doubtful whether they are effective for CIETAC arbitrations where the seat is in the PRC.
2. This contrasts with the approach taken by certain institutions, such as the ICC, where emergency arbitration procedures only apply to arbitration agreements entered into after the date of the introduction of the emergency arbitration rules themselves.
3. [2007] HKLRD 414.
4. [2015] HKCFI 1787.
5. [2016] HKEC 532.
6. [2016] HKCFI 41.
7. [2015] HKEC 1626.
8. [2015] 3 HKC 246.