A Refinement to meet Contemporary Demands - Key Features of the 2024 HKIAC Administered Arbitration Rules

Introduction

The 2024 Administered Arbitration Rules (the “2024 Rules”) of the Hong Kong International Arbitration Centre (HKIAC) recently came into effect on 1 June 2024, reflecting its commitment to enhancing efficiency, transparency, and flexibility in arbitration proceedings. 

The full text of the 2024 Rules can be accessed here.

Key Takeaway

While no radical changes are made to the 2024 Rules, new provisions are introduced to confer additional powers and duties on the HKIAC, the tribunal and emergency arbitrator; expedite the process regarding closing of proceedings and issuing of awards; and improve the operation of the single arbitration regime. Additionally, the 2024 Rules also address modern complexities such as the growing use of technology in proceedings; and the need for diversity and greener arbitration.

All in all, the 2024 Rules retain the HKIAC’s “light touch” administration style in arbitral proceedings, while extending existing powers and duties, and codifying established practices.

The 2024 Rules signify a progressive step towards refining the already commendable 2018 Rules in line with contemporary demands. The enhancements, while not revolutionary, are a testament to HKIAC's dedication to enhancing its position as a market-leading centre and continuous improvement, ensuring that its procedures remain at the forefront of efficiency, transparency, and adaptability.

Summary of Key Changes

Key changes introduced are summarised as follows: 

Expanded Powers of the Tribunal, the HKIAC and Emergency Arbitrator

• The tribunal is granted formalised power to take any necessary measures to enhance efficiency of the arbitration under the new Article 13.6. This includes: (1) determining preliminary issues which the tribunal considers could dispose of all or part of the case, (2) bifurcating the proceedings, (3) conducting the arbitration in sequential stages, and (4) deciding the stage of the arbitration at which any issue or issues shall be determined.
• To enable the tribunal to preserve the integrity of the arbitration, the new Article 13.9 enables the tribunal to exclude proposed new legal representatives from participating in the arbitration if their relationship with the legal representative would create a conflict of interest.
  The 2024 Rules have also expanded the powers of the HKIAC. Under the new Article 13.10, the HKIAC can now revoke the appointment of an arbitrator who fails to fulfil their functions under the rules within the prescribed time limit.
• Regarding costs and fees, Schedule 2, new Paragraph 5.1 enables the HKIAC to review and adjust the tribunal's fees and expenses where appropriate.  Additionally, under Article 41.4(a), the HKIAC can now suspend or cease arbitration proceedings before the tribunal is constituted if the parties fail to fully pay the deposits for costs.
• The new Schedule 4 clarifies and expands the powers of emergency arbitrators.  They can now (1) make preliminary or interim orders during emergency relief proceedings (2) issue the emergency decision within the prescribed time, even if the case file has already been transmitted to the tribunal.

Promoting Diversity and Greener Arbitration

• The new Article 9A.1 encourages parties and co-arbitrators to consider diversity, including gender, age, nationality, and ethnicity when appointing arbitrators. 
• To reduce the environmental footprint of arbitrations, the new Articles 13.1 and 34.4 require the tribunal to consider their environmental impact when determining the procedures and allocating the costs of the arbitration respectively. 

Enhancement of Information Security

• Considering the increasing number of arbitrations conducted partially or fully on an electronic basis, the 2024 Rules address information security concerns in these arbitrations. The new Article 45A expressly empowers tribunals to give directions on any reasonable measures to protect shared, stored, or processed information relating to the arbitration; and to make a decision / order / award in respect of any breaches of any such directions.
• “Information security” has been added to Article 13.1 as a factor which the tribunal must consider when performing its duties to adopt suitable procedures for the conduct of the arbitration.

Expedited Procedures and Time Limit for Issuing Award 

• The 2024 Rules impose more stringent time limits for proceedings and the rendering of awards under the combined effect of the revised Article 31.1 and the existing Article 31.2. The tribunal is now required to declare the entire proceedings or a discrete phase closed within 45 days from the last directed submission in respect of the entire proceedings or the discrete phase, and thereafter issue its award within 3 months.
• The revised Article 42.2(f) relating to expedited procedures now allows HKIAC to extend the 6-month time limit for delivering the award in appropriate circumstances rather than in exceptional ones. Also, while previously only the parties were allowed to request HKIAC to decide that the expedited procedure shall no longer apply, the revised Article 42.3 extends this right to the tribunal.

Waiver of right to designate an arbitrator in a single arbitration under multiple contracts

• Pursuant to the existing Article 19.5, a single arbitration under multiple contracts shall proceed only if HKIAC is satisfied that the arbitration has been properly commenced. 
• A new Article 29.2 provides that where HKIAC decides that the arbitration has been properly commenced, parties shall be deemed to have waived their right to designate an arbitrator. This aims to improve the operation of the regime where arbitration clauses may lack compatibility with regard to the appointment process.

Conclusion 

The 2024 Rules are a refinement of one of the world’s leading arbitral institutions’ ruleset. While maintaining HKIAC’s general “light touch” approach and respect to party autonomy, the 2024 Rules provide greater certainty and powers to both the HKIAC and the tribunal to conduct arbitrations in a fair and efficient way by reducing frequently argued procedural issues, thus better enabling parties to focus on the real issues in dispute.