Table of Cases |
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xxiii | |
Table of Legislation |
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xxvii | |
List of Abbreviations |
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xxxvii | |
1 Introduction to Arbitration in Hong Kong |
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1 | (10) |
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A Hong Kong-Asia's World City' |
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2 Strong industry expertise |
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3 Developed legal framework |
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5 Free choice of arbitral procedures, legal representation, and arbitrators |
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6 Worldwide enforceability of Hong Kong awards |
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C The Hong Kong Arbitration Community |
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D Investor-State Arbitration |
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1 Insights on China-related disputes |
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2 The Legal Arbitration Framework |
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11 | (12) |
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A The Hong Kong Arbitration Ordinance |
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1 Historical development of Hong Kong arbitration law |
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2 Structure and scope of the Arbitration Ordinance |
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3 Key features of the Arbitration Ordinance |
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B Arbitration-Related Court System |
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C Judicial Support of Arbitration |
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D Enforcement of Hong Kong Arbitral Awards |
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E Sovereign and Crown Immunity in Hong Kong |
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3 Introduction to HKIAC |
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23 | (22) |
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B Organizational Structure |
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1 HKIAC management bodies |
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a Finance and Administration Committee |
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1 Administering arbitrations under the HKIAC Administered Arbitration Rules |
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a Multiple-party and multiple-contract provisions |
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b Twin-track fee regime and standard terms of appointment |
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c Emergency arbitrator procedures |
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e Prima facie power to proceed |
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2 Administering arbitrations under other rules issued by HKIAC |
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3 Administering arbitrations under the UNCITRAL Rules |
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4 Appointing authority in ad hoc cases seated in Hong Kong |
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F Domain Name Disputes at HKIAC |
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1 Generic Top-Level Domains (gTLDs) |
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a Uniform Domain Name Dispute Resolution Policy (UDRP) |
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b Uniform Rapid Suspension System (URS) |
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c Trademark Post Delegation Dispute Resolution Procedure (Trademark-PDDRP) |
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d Registrar Transfer Dispute Resolution Policy (TDRP) |
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f Internet keywords and wireless keywords |
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G Other Services at HKIAC |
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2 Tribunal secretary service and training |
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5 Secretariat support service |
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I Overview of the Arbitration Process under the HKIAC Rules |
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4 Model Arbitration Clauses |
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45 | (8) |
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A The Nature and Scope of Model Arbitration Clauses |
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1 The purpose of a model clause |
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2 Elements of the HKIAC model clauses |
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a Agreement for binding arbitration |
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b Scope of disputes covered |
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c Selection of an arbitral seat (or place of the arbitration) |
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d Use of an arbitral institution and its rules |
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f Language of the arbitration |
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g Law governing the arbitration agreement |
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1 Arbitration under HKIAC Rules |
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2 Arbitration administered by HKIAC under UNCITRAL Rules |
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3 Ad hoc arbitration under the UNCITRAL Rules |
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1 Mandatory national laws: substantive or procedural |
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3 Procedural considerations |
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4 Multiple parties or multiple contracts |
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5 General Provisions of the HKIAC Rules (Articles 1-3) |
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53 | (8) |
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A Article 1-Scope of Application |
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1 Article 1.1: Arbitration agreements to which the Rules apply |
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2 Article 1.2: Relationship with other arbitration rules |
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3 Articles 1.3 and 1.4: Commencement and exclusion of certain provisions |
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B Article 2-Notices and Calculation of Periods of Time |
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1 Article 2.1: Delivery method and address |
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a Acceptable methods of delivery |
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2 Article 2.2: Date of receipt |
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b Determining the date of receipt |
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3 Articles 2.3 and 2.4: Calculation of periods of time |
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a Time limits under the Rules |
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C Article 3-Interpretation of Rules |
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1 Article 3.1: Power to interpret the HKIAC Rules |
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2 Article 3.2: Reasons and finality of the decision |
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3 Article 3.3: References to HKIAC |
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4 Articles 3.4-3.10: Definitions |
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a 'Claimant', 'Respondent', 'additional party', 'party', 'claim' and 'arbitral tribunal' |
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5 Article 3.11: Schedules |
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6 Article 3.12: Practice notes |
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7 Article 3.13: Prevailing language |
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6 Commencement of the Arbitration (Articles 4 and 5, Schedule 1) |
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61 | (22) |
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A Article 4-Submitting a Dispute to Arbitration |
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a Writing and form requirements |
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b Delivery of Notice to HKIAC |
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a A demand that the dispute be referred to arbitration |
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b Contact details of the parties and their counsel |
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c The arbitration agreement(s) invoked |
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d A reference to the contract(s) or other legal instrument(s) out of or in relation to which the dispute arises |
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e Description of the general nature of the claim and an indication of the amount involved |
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f The relief or remedy sought |
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g A proposal as to the number of arbitrators |
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h The claimant's proposal regarding the designation of an arbitrator |
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i Confirmation of service |
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j Amendments to the Notice |
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B Article 5-Answer to the Notice of Arbitration |
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a Time limit for submitting the Answer |
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c Contact information of the respondent |
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d Any plea that an arbitral tribunal constituted under these Rules lacks jurisdiction |
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e The respondent's comments on the nature of the claim and the amount in dispute |
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f The respondent's answer to the claimant's relief or remedy |
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g The respondent's proposal as to the number of arbitrators |
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h The respondent's proposal regarding the designation of an arbitrator |
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i Confirmation of service |
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C Schedule 1-Registration and Administrative Fees |
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1 Schedule 1-Paragraph 1.1 |
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2 Schedule 1-Piragraph 1.2 |
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3 Schedule 1-Paragraph 1.3 |
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4 Schedule 1-Paragraph 2.1 |
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5 Schedule 1-Paragraph 2.2 |
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6 Schedule 1-Paragraph 2.3 |
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7 Schedule 1-Paragraph 2.4 |
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8 Schedule 1-Paragraph 2.5 |
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9 Schedule 1-Paragraph 2.6 |
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7 Arbitral Tribunal (Articles 6-12, Schedules 2 and 3 |
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83 | (44) |
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A Article 6-Number of Arbitrators |
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a The parties' agreement on the number of arbitrators |
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b Determination of the number of arbitrators by HKIAC |
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B Article 7-Appointment of a Sole Arbitrator |
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a Procedure for the appointment of a sole arbitrator by HKIAC |
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b Considerations for appointing a sole arbitrator |
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C Article 8-Appointment of Three Arbitrators |
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a Appointment of co-arbitrators |
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b Appointment of the Third and Presiding Arbitrator |
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a Regular appointment procedure |
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b HKIAC's power to appoint all arbitrators |
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D Article 9-Confirmation of the Arbitral Tribunal |
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E Article 10, Schedules 2 and 3-Fees and Expenses of the Arbitral Tribunal |
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6 Schedules 2 and 3-Section 2 |
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9 Schedules 2 and 3-Section 4 |
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10 Schedules 2 and 3-Section 5 |
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13 Schedules 2 and 3-Section 7 |
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14 Schedules 2 and 3-Section 8 |
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F Article 11-Qualifications and Challenge of the Arbitral Tribunal |
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a Duty of impartiality and independence |
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b Ongoing duty throughout the arbitration |
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a The nationality requirement |
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b Determination of nationality |
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a Content of the Declaration |
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c Ongoing duty to disclose |
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a Justifiable doubts as to an arbitrator's impartiality or independence |
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b Lack of qualifications agreed by the parties |
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c De jure or de facto unable to perform functions or failure to act without undue delay |
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a Determination of the challenge by HKIAC |
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b Finality of HKIAC decision on challenge under Hong Kong law |
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c Status of proceedings while challenge pending |
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G Article 12-Replacement of an Arbitrator |
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8 Emergency Relief and Interim Measures of Protection (Articles 23 and 24, Schedule 4) |
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127 | (32) |
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A Article 23.1 and Schedule 4-Emergency Relief from an Emergency Arbitrator |
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1 Article 23.1-application for emergency relief |
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a The need for emergency relief |
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b Definition of 'emergency relief' |
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c Factors to be considered by an emergency arbitrator when granting emergency relief |
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d Types of emergency relief that can be granted by an emergency arbitrator |
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3 Schedule 4-paragraphs 2-4 |
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a Service of an application for emergency relief |
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b Components of an application for emergency relief |
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9 Schedule 4-paragraph 10 |
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10 Schedule 4-paragraph 11 |
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11 Schedule 4-paragraphs 12 and 13 |
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12 Schedule 4-paragraph 14 |
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13 Schedule 4-paragraph 15 |
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14 Schedule 4-paragraph 16 |
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15 Schedule 4--paragraph 17 |
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16 Schedule 4-paragraph 18 |
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17 Schedule 4-paragraph 19 |
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18 Schedule 4-paragraphs 20 and 21 |
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19 Schedule 4-paragraph 22 |
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20 Schedule 4-paragraph 23 |
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21 Schedule 4-paragraph 24 |
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B Articles 23.2-23.8-Interim Relief from an Arbitral Tribunal |
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1 Article 23.2-tribunal may order interim measures |
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2 Article 23.3-types of interim measures |
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a Definition of interim measures |
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b Types and forms of interim measures |
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c Other provisional measures available from arbitral tribunals under Hong Kong law |
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3 Article 23.4-factors to consider before ordering interim measures |
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4 Article 23.5-modification, suspension, or termination of interim measures |
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5 Articles 23.6-security in connection with an interim measure |
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6 Article 23.7-material change in circumstances |
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7 Article 23.8-liability for costs and damages |
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C Article 23.9-Interim Relief from a Court |
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1 Article 23.9-request for interim measures by a court |
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a Advantages and disadvantages of seeking interim relief from courts and arbitral tribunals |
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b Statutory power of the Hong Kong courts to issue interim relief |
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D Article 24-Security for Costs |
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1 Article 24-order for security for costs |
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9 Conduct of the Arbitration (Articles 13-22, 25-26, 30-31) |
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159 | (48) |
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A Article 13-General Provisions |
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1 Article 13.1-arbitral tribunal's power to adopt suitable procedures |
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a The arbitral tribunal's power to determine the procedures |
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b Subject to the HKIAC Rules |
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c Avoiding unnecessary delay or expense |
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d Ensuring equal treatment of the parties and a reasonable opportunity to present their case |
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2 Article 13.2-provisional timetable |
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3 Article 13.3-communication of documents or information |
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4 Article 13.4-appointment of a tribunal secretary |
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a Need for tribunal secretaries |
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b Appointment of a tribunal secretary |
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c Appointment of an HKIAC Secretariat member as tribunal secretary |
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d Impartiality and independence of a tribunal secretary |
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e Role of a tribunal secretary |
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f Remuneration of a tribunal secretary |
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5 Article 13.5-ensuring the fair and efficient conduct of the arbitration |
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6 Article 13.6-party representation |
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a Free choice of legal representation |
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b Subject to Article 13.5 |
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c Communication of the details of the party representatives |
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7 Article 13.7-matters not expressly provided for in the Rules |
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8 Article 13.8-ensuring that an award is valid |
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B Article 14-Seat and Venue of the Arbitration |
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1 Article 14.1-seat of the arbitration |
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a Parties are free to agree on any seat of arbitration |
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b Hong Kong as the default seat |
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c The arbitral tribunal's discretion to choose another seat |
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2 Article 14.2-venue of hearings and meetings |
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C Article 15-Language of the Arbitration |
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1 Article 15.1-arbitral tribunal's power to determine the language(s) of the arbitration |
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a Parties are free to agree on any language of arbitration |
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b Languages used by HKIAC |
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c The arbitral tribunal must determine the language(s) of the arbitration absent party agreement |
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2 Article 15.2-translation of documents |
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D Articles 16-18 and 20-21-Written Submissions |
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1 Article 16.1-filing a Statement of Claim |
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a Form of the Statement of Claim |
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b The time limit for filing the Statement of Claim |
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c Delivery of the Statement of Claim |
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2 Article 16.2-contents of the Statement of Claim |
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3 Article 16.3-documents annexed to the Statement of Claim |
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4 Article 16.4-varying the Statement of Claim's requirements |
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5 Article 17.1-filing a Statement of Defence |
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6 Article 17.2-contents of the Statement of Defence |
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a Basic contents of the Statement of Defence |
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b Objection to the arbitral tribunal's jurisdiction or the proper constitution of the tribunal |
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7 Article 17.3-counterclaims and set-off defences |
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8 Article 17.4-documents annexed to the Statement of Defence |
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9 Article 17.5-varying the Statement of Defence's requirements |
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10 Article 18.1-amendments to claims or defences |
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11 Article 18.2-adjustment of HKIAC's Administrative Fees and the arbitral tribunal's fees |
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12 Article 20-further written statements |
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13 Article 21-time period for written statements |
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a Time periods for communication of written statements |
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E Article 19-Jurisdiction of the Arbitral Tribunal |
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F Article 22-Evidence and Hearings |
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1 Article 22.1-burden of proof |
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2 Article 22.2-assessment of evidence |
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3 Article 22.3-production of documents |
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a Document production process |
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b Documents that are relevant to the case and material to its outcome |
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c Admission and exclusion of evidence |
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4 Article 22.4-oral hearings |
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a The arbitral tribunal's power to hold oral hearings |
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5 Article 22.5-witnesses and experts |
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a Who can be a witness or an expert? |
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b Notice of witness or expert |
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6 Article 22.6-translation and transcript |
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a Translation of oral statements |
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7 Article 22.7-privacy of hearings and cross-examination |
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b Sequestration of witnesses or experts |
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c Cross-examination of witnesses or experts |
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G Article 25-Tribunal-Appointed Experts |
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1 Article 25.1-appointment of an expert by the arbitral tribunal |
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a Arbitral tribunal's powers to appoint experts |
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c Expert to produce a written report |
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2 Article 25.2-provision of information to tribunal-appointed expert |
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3 Article 25.3-communication of tribunal-appointed expert report to the parties |
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4 Article 25.4-examination of tribunal-appointed expert by the parties |
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5 Article 25.5-impartiality and independence of tribunal-appointed expert |
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1 Article 26.1-failure to submit Statement of Claim |
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2 Article 26.2-failure to submit Statement of Defence |
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3 Article 26.3-failure to present case |
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I Article 30-Closure of Proceedings |
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1 Article 30.1-closing the proceedings |
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2 Article 30.2-reopening the proceedings |
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J Article 31-Waiver of Right to Object |
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10 Complex Arbitrations (Articles 27-29) |
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207 | (38) |
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A Article 27-Joinder of Additional Parties |
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1 Article 27.1-arbitral tribunal's power to order joinder |
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a Definition of 'additional party' |
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b Arbitral tribunal decides requests for joinder |
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c Prima facie basis for decision |
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d Definition of 'an arbitration agreement under these Rules giving rise to the arbitration' |
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e 'Including any arbitration under Articles 28 or 29' |
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2 Article 27.2-effect of tribunal's decision to order joinder |
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3 Article 27.3-submission of Request for Joinder |
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4 Article 27.4-content of Request for Joinder |
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b Express Request for joinder |
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c Status of a joined party |
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d Service of Request for Joinder |
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5 Article 27.5-Answer to the Request for Joinder |
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a Not applicable where Request for Joinder submitted under Article 27.6 |
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c Service of Answer to the Request for Joinder |
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d Objections to jurisdiction |
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e Objections to the constitution of the tribunal |
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f Additional party's comments on particulars in the Request for Joinder |
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g Additional party's answer to the relief or remedy sought in the Request for Joinder |
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h Claims by the additional party against any other party to the arbitration |
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6 Article 27.6-third party wishing to be joined as an additional party |
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7 Article 27.7-parties' comments on Request for Joinder |
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8 Article 27.8-HKIAC's power to order joinder |
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9 Article 27.9-HKIAC's decision without prejudice |
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10 Article 27.10 date of commencement of arbitration against joined party |
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11 Article 27.11-revocation of appointment |
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a Deemed waiver of right to designate arbitrators |
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b 'In these circumstances, HKIAC shall appoint the entire tribunal' |
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c 'HKIAC may revoke the appointment of any arbitrators already designated or confirmed' |
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12 Article 27.12-consequences of revocation of appointment |
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a Act or order before appointment revoked |
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13 Article 27.13-waiver of right to object |
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14 Article 27.14-adjustment of Administrative Fees or arbitral tribunal's fees |
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B Article 28-Consolidation of Arbitrations |
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1 Article 28.1-conditions for consolidation |
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a consolidation with party agreement |
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b claims under the same arbitration agreement |
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d Article 28.1 (c): claims raising common issues of law or fact in same or similar transaction |
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e Consolidation under Schedule 2 of the Arbitration Ordinance |
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f Contents of a Request for Consolidation |
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2 Article 28.2-service of the Request for Consolidation |
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3 Article 28.3-relevant factors to determine whether to consolidate |
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4 Article 28.4-decision on Request for Consolidation |
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5 Article 28.5-consolidation without prejudice to earlier acts by a court |
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6 Article 28.6-revocation of appointment |
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a Deemed waiver of right to designate arbitrators |
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b 'In these circumstances, HKIAC shall appoint the entire tribunal' |
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c 'FIKIAC may revoke the appointment of any arbitrators already designated or confirmed' |
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7 Article 28.7-revocation of appointment is without prejudice |
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a Act or order before appointment revoked |
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8 Article 28.8-waiver of any objection following consolidation |
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9 Article 28.9-adjustment of Administrative Fees and tribunal's fees |
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a HKIAC's Administrative Fees |
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c Costs of a consolidated arbitration |
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C Article 29-Single Arbitration under Multiple Contracts |
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1 Article 29.1-single arbitration under multiple contracts |
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2 Article 29.2-waiver of any objection |
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11 Awards, Decisions, and Orders of the Arbitral Tribunal (Articles 32-40) |
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245 | (30) |
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1 Article 32.1-majority rulings |
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2 Article 33.1-definition of costs |
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B Article 33-Costs of the Arbitration |
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1 Article 33.1-definition of costs |
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c Factors relevant to the assessment of costs |
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2 Article 33.2-apportionment of costs |
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b Costs lie where they fall |
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c Issues-based allocation |
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3 Article 33.3-limiting recoverable legal fees |
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4 Article 33.4-consolidated proceedings |
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5 Article 33.5-determination of costs following termination of proceedings prior to issuance of award |
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C Article 34-Form and Effect of the Award |
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1 Article 34.1-type of award |
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2 Article 34.2-form and binding nature of an award |
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a Final and binding effect of awards |
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3 Article 34.3-compliance with an award by the parties |
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c Exceptions to the duty to give reasons |
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5 Article 34.5-execution of the award |
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a Signatures of arbitral tribunal |
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b Date of the arbitral award |
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6 Article 34.6-transmission of the award |
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D Article 35-Applicable Law, Amiable Compositeur |
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1 Article 35.1-applicable law |
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b Consequence of parties' failure to designate a law |
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2 Article 35.2-amiable compositeur |
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3 Article 35.3-applicable contractual terms and trade usages |
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E Article 36-Settlement or Other Grounds for Termination |
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1 Article 36.1-settlement of the dispute |
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c Termination prior to constitution of the arbitral tribunal |
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2 Article 36.2-continuation of the arbitration is unnecessary or impossible |
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3 Article 36.3-communication of the termination order or consent award |
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F Article 37-Correction of the Award |
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1 Article 37.1-request for correction of an award by a party |
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2 Article 37.2-time period within which a correction may be made |
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3 Article 37.3-corrections initiated by the arbitral tribunal |
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4 Article 37.4-further corrections |
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5 Article 37.5-form of corrections |
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G Article 38-Interpretation of the Award |
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1 Article 38.1-request for interpretation of an award by a party |
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2 Article 38.2-time period within which an interpretation may be made |
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3 Article 38.3-further interpretation |
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4 Article 38.4-form of interpretation |
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H Article 39-Additional Award |
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1 Article 39.1-request for an additional award by a party |
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2 Article 39.2-time period within which an additional award may be made |
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I Article 40-Deposits for Costs |
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1 Article 40.1-request for initial deposits |
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a Purpose of the request for initial deposits |
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c Amount of the initial deposit |
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d Payment of the initial deposit |
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2 Article 40.2-separate deposits |
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3 Article 40.3-supplementary deposits |
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4 Article 40.4-failure to pay |
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5 Article 40.5-accounting in final award |
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6 Article 40.6-deposit holding accounts |
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12 Miscellaneous Provisions (Articles 41-43) |
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275 | (12) |
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A Article 41-Expedited Procedure |
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1 Article 41.1-application for the Expedited Procedure |
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b Agreement by the parties |
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c In cases of exceptional urgency |
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2 Article 41.2-Expedited Procedure rules |
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3 Article 41.3-application of expedited procedure for consolidated proceedings under Article 28 or arbitrations commenced under Article 29 |
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B Article 42-Confidentiality |
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1 Articles 42.1 and 42.2-the duty of confidentiality |
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2 Article 42.3-exceptions to the duty of confidentiality |
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3 Articles 42.4 and 42.5-confidentiality of deliberations and award |
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C Article 43-Exclusion of Liability |
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1 Article 43.1-exclusion of liability |
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2 Article 43.2-witnesses in legal or other proceedings |
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Appendix 1. Summary of Advantages of Arbitrating in Hong Kong |
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287 | (2) |
Appendix 2. Summary of Advantages of Arbitrating at HKIAC |
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289 | (2) |
Appendix 3. Administered Arbitration Rules 2013 |
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291 | (26) |
Appendix 4. HKIAC Practice Notes |
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317 | (8) |
Appendix 5. Arbitrator's Declaration of Acceptance and Statement of Availability, Impartiality, and Independence |
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325 | (1) |
Appendix 6. HKIAC Model Arbitration Clauses |
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326 | (3) |
Appendix 7. Hong Kong International Arbitration Centre Procedures for the Administration of Arbitration under the UNCITRAL Arbitration Rules |
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329 | (7) |
Appendix 8. HKIAC Guidelines on the Use of a Secretary to the Arbitral Tribunal |
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336 | (4) |
Appendix 9. Hong Kong Arbitration Ordinance (Cap 609) |
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340 | (56) |
Appendix 10. Arbitration (Appointment of Arbitrators and Mediators and Decisions on Number of Arbitrators) Rules (Cap 609C) |
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396 | (11) |
Appendix 11. HKIAC Case Statistics |
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407 | (1) |
Appendix 12. Statistics on Enforcement of Arbitral Awards in Hong Kong 2009 to 2015 |
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408 | (7) |
Index |
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415 | |