A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China. (On 1 July 1997, Hong Kong became part of the People’s Republic of China but maintains a separate legal system.)

2. Date of entry into force of the New York Convention

21 April 1977. Prior to the resumption of sovereignty on 1 July 1997, the United Kingdom had extended the territorial application of the New York Convention to Hong Kong since 21 Apr. 1977. By virtue of China’s resumption of sovereignty over Hong Kong on 1 July 1997, the Government of China extended the territorial application of the New York Convention to Hong Kong, subject to the statement originally made by China upon accession to the New York Convention.

China acceded to the Convention on 22 Apr. 1987.

(Source: Notice of the Supreme People's Court on the Implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 Apr. 1987.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity?

China has made a declaration under Art. I(3) of the New York Convention that the Convention shall only apply to the recognition and enforcement of awards rendered in another Contracting State. Thus, an award will be enforced in Hong Kong only if the State in which the award was made is a party to the New York Convention.

(b) commercial relationships?

Not applicable: China’s Permanent Representative to the United Nations (UN) stated in a Note to the UN Secretary General dated 6 June 1997 that the application of the New York Convention to the HKSAR from 1 July 1997 is subject only to the declaration as to reciprocity.

(Source: Para. 3.40 (footnote 11), The Law Reform Commission of Hong Kong Report on Third Party Funding for Arbitration (Oct. 2016), https://www.hkreform.gov.hk/en/publications/rtpf.htm.)

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

Division 1 of Part 10 of the Arbitration Ordinance (Cap. 609) provides for enforcement of foreign non-New York Convention, non-Mainland awards. The grounds for refusal of enforcement include those of the New York Convention, but are broader as the court is empowered to refuse enforcement of such awards for any reason the court considers it just to do so.

(Source: Arbitration Ordinance (Cap. 609, s. 86(2)(c).)

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

(i) Arbitration Ordinance (Cap. 609, Laws of Hong Kong);

(ii) Arbitration Order (Parties to New York Convention) (Cap. 609A, Laws of Hong Kong);

(iii) Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap. 319, Laws of Hong Kong);

(iv) Order 73 Rules of the High Court (Cap. 4A, Laws of Hong Kong);

(v) relevant court decisions.

C. Limitation periods (time limits)

6. (a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

Yes.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

The limitation period for recognition and enforcement of foreign awards is 6 years from the date of failure to honour the award, unless the arbitration agreement is made under seal, in which case the limitation period is 12 years: s. 14 of the Arbitration Ordinance (Cap. 609), incorporating the provisions of the Limitation Ordinance (Cap. 347) and any other Hong Kong Ordinances relating to the limitation of actions. See also s. 84 of the Arbitration Ordinance, which provides that an award, whether made in or outside Hong Kong, is enforceable in the same way as a judgment of the court, and s. 87, which provides for the enforcement of Convention awards.

(Source: Limitation Ordinance (Cap. 347, Laws of Hong Kong), s. 4; Arbitration Ordinance (Cap. 609, Laws of Hong Kong), ss. 14, 84 and 87.)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

The High Court of Hong Kong (consisting of the Court of First Instance and the Court of Appeal).

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

There are no jurisdictional requirements as regards respondents who can be served with process within Hong Kong. Leave of the court is required to serve process for the enforcement of awards on respondents who are outside the jurisdiction.

(Source: Rules of the High Court (Cap. 4A, Laws of Hong Kong), Order 11 r1(1)m and Order 73 r(7)(2).)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The first decision of the Court of First Instance (CFI), giving leave to enforce the award, is made by way of an ex parte application. However, the court also has discretion to order that an inter partes summons be issued where the right to enforce the judgment has not been clearly made out in the ex parte application.

(Source: Rules of the High Court (Cap. 4A, Laws of Hong Kong), Order 73 r10(1).)

10. (a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes. As mentioned above, the first application to the Court of First Instance (CFI) for leave to enforce the award is made by way of an ex parte application (although the court also has discretion to order that an inter partes summons be issued). Once the CFI grants leave to enforce the award (pursuant to the ex parte application), the party against whom enforcement is sought may apply to have the CFI’s decision set aside. However, enforcement of an award will not be set aside except on any of the grounds stipulated in s. 89 of the Arbitration Ordinance, which are essentially identical to the grounds set out in Art. V of the New York Convention.

(Source: Rules of the High Court (Cap. 4A, Laws of Hong Kong), Order 73 r 10; Arbitration Ordinance (Cap. 609, Laws of Hong Kong), s. 89.)

The CFI’s decision on the application to set aside (mentioned above) is subject to further appeal to the Court of Appeal.

(Source: High Court Ordinance (Cap. 4, Laws of Hong Kong), s. 14(1); Rules of the High Court (Cap. 4A, Laws of Hong Kong), Order 59 r 1(1).)

(b) How many levels of appeal or recourse are available against this decision?

Two. Leave to appeal to the Court of Appeal must be obtained.

(Source: s. 14AA(1) of the High Court Ordinance; Rules of the High Court (Cap. 4A, Laws of Hong Kong), Order 59 r 21(1)(i); Arbitration Ordinance s. 84(3).)

Subject to obtaining leave to appeal, which may be granted by either the Court of Appeal or the Court of Final Appeal, a judgment or order of the Court of Appeal may be appealed to the Court of Final Appeal.

(Source: Hong Kong Final Court of Appeal Ordinance (Cap. 484, Laws of Hong Kong), s. 23.)

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

Assuming the court has not ordered that an inter partes summons be issued and therefore the initial application for leave to enforce the award is made by an ex parte application, the respondent has 14 days after service of the court’s order giving permission to enforce the award or, if the order is to be served outside the jurisdiction, the period set by the court, in which to apply for the order to be set aside. The award can be enforced against assets at the end of that period, provided no application to set aside the order has been made within that period. If such an application has been made, the award may not be enforced until the application has been finally disposed of.

(Source: Rules of the High Court (Cap. 4A, Laws of Hong Kong), Order 73 r10(6).)

E. Evidence required

12. (a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

The application for leave to enforce the award must be supported by affidavit exhibiting (i) the duly authenticated original award or a duly certified copy of it, and (ii) the original arbitration agreement or a duly certified copy of it.

The affidavit must (i) state the name and usual or last known place of abode or business of the applicant and the person against whom enforcement of the award is sought and (ii) state either (a) that the award has not been complied with or (b) the extent to which it has not been complied with, as at the date of the application. The applicant must make full and frank disclosure of all material and relevant facts.

(Source: Rules of the High Court (Cap. 4A, Laws of Hong Kong), Order 73 r 10(3); Arbitration Ordinance (Cap. 609, Laws of Hong Kong), ss. 85 and 88.)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

The arbitration agreement in full is expressly required to be provided; as a matter of practice the entire contract or set of documents that include the arbitration agreement should be filed. An arbitration agreement for the purposes of the Arbitration Ordinance may be in the form of an arbitration clause in a contract or a separate arbitration agreement, which may be constituted by the exchange of documents.

(Source: Arbitration Ordinance (Cap. 609, Laws of Hong Kong), ss. 2, 19, 88.)

(c) Are originals or duly certified copies required?

The applicant is required to submit either originals or duly certified copies.

(Source: Arbitration Ordinance (Cap. 609, Laws of Hong Kong), s. 88.)

(d) How many originals or duly certified copies are required?

The court will require only one duly certified copy of the original award and the arbitration agreement respectively.

(e) Does the authority or court keep the originals that are filed?

Yes. The court registry will retain all documents that are filed with the court. An applicant will need to seek leave from the court to retrieve the originals of the documents.

(Source: Rules of the High Court (Cap. 4A, Laws of Hong Kong), Order 63 r9.)

13. (a) Is it necessary to provide a translation of the documents supplied?

If the documents are not already in either of the official languages of Hong Kong (English and Chinese), then translations will be required.

(Source: Arbitration Ordinance (Cap. 609, Laws of Hong Kong), s. 88; Art. IV of the New York Convention provides that the documents should be translated into the official language of the country in which the award is relied upon.)

(b) If yes, into what language?

English or Chinese, Hong Kong’s two official languages for purposes of court proceedings.

(Source: Official Languages Ordinance (Cap. 5, Laws of Hong Kong), s. 3.)

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

Yes. Translations of the documents must be certified by an official or sworn translator or by a diplomatic or consular agent.

(Source: Arbitration Ordinance (Cap. 609, Laws of Hong Kong), s. 88(c).)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

Translations will need to be obtained for all documents submitted and filed with the court that are not in Hong Kong’s official languages (i.e. English or Chinese).

(Source: Official Languages Ordinance (Cap. 5, Laws of Hong Kong), s.3.)

F. Stay of enforcement

14. (a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes. Where the person against whom the Convention award is invoked proves that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority in the country where or under whose law it was made, the Hong Kong court in which enforcement of the award is sought may, if it thinks fit, adjourn the proceedings and may, on the application of the party seeking to enforce the award, order the other party to provide security.

(Source: Arbitration Ordinance (Cap. 609), s. 89.)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

A Hong Kong court has inherent jurisdiction to stay proceedings if appropriate to do so, e.g. forum non conveniens.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

No, although the court has power to order the person requesting the stay (generally the respondent debtor) to provide security.

(Source: Arbitration Ordinance (Cap. 609, Laws of Hong Kong), s. 89(5).)

G. Confidentiality

15. (a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

Arbitral proceedings under an arbitration agreement and any award made in those proceedings are confidential, including documents filed therein, unless the parties have agreed otherwise.

(Source: Arbitration Ordinance (Cap 609, Laws of Hong Kong), s. 18, s. 18(2) provides for exceptions to this general principle.)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

Hearings under the Arbitration Ordinance are required to take place before a judge in chambers and are generally not open to the public. However, in limited circumstances, Hong Kong courts may, whether at a party's request or on its own motion, order that the hearing be open to the public.

(Source: Arbitration Ordinance (Cap. 609, Laws of Hong Kong), s. 16; Rules of High Court (Cap. 4A, Laws of Hong Kong), Order 73 r3; Hong Kong Practice Direction 25.1 (‘Chambers Hearings in Civil Proceedings in the High Court, the District Court, the Family Court and the Lands Tribunal’).

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

See Q.15(b) above. Judgments on recognition and enforcement given in proceedings heard in the Court of First Instance or the Court of Appeal in Hong Kong otherwise than in open court may be published if (i) all parties to the proceedings agree that such information may be published or (ii) the court is satisfied that the information, if published in accordance with such directions as it may give, would not reveal any matter that any party to the proceedings reasonably wishes to keep confidential.

(Source: Arbitration Ordinance (Cap. 609), s. 17(3).)

No report should be made of any proceedings (including the judgment) held in chambers not open to the public without the authority of the judge before whom the proceedings were conducted. If the judge considers that proceedings should be open for reporting or the judgment should be released for publication, the parties should be given an opportunity to make representations on the matter beforehand.

(Source: Hong Kong Practice Direction 25.2 (‘Reports on Hearings Held in Chambers Not Open to Public’).)

Where the court considers the judgment to be of significant legal interest, it must direct that reports of the judgment may be published in law reports and professional publications; however, if any party to the proceedings reasonably wishes to conceal any matter, including the fact of being a party to the proceedings, the court must (i) give directions on the action to be taken to conceal that matter in those reports and (ii) if it considers that a report published in accordance with directions given under (i) would be likely to reveal that matter, direct that no report be published until an appropriate time has elapsed, which may not exceed 10 years.

(Source: Arbitration Ordinance (Cap. 609, Laws of Hong Kong), s. 17.)

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

The fact that a foreign award is an interim or partial award is not a ground upon which Hong Kong courts may refuse enforcement.

(Source: Arbitration Ordinance (Cap. 609, Laws of Hong Kong), s. 89.)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

There is no statutory provision expressly distinguishing between monetary relief and non-monetary relief insofar as the recognition and enforcement of foreign arbitral awards are concerned. Hong Kong courts have given leave to enforce foreign arbitral awards containing non-monetary relief.

(Source: Hebei Import & Export Corporation v. Polytek Engineering Co. Ltd [1999] 1 HKLRD 665, Court of Final Appeal.)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

The courts may enforce a foreign award containing a decision on matters not submitted to arbitration, to the extent that it contains a decision on matters submitted to arbitration which can be separated from the decision on matters not so submitted.

(Source: Arbitration Ordinance (Cap. 609, Laws of Hong Kong), s. 89(4).)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

The courts may, but are not compelled to, refuse enforcement of a foreign award which has been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention. It would appear that the Hong Kong courts have residual discretion to order enforcement in such cases.

(Source: Arbitration Ordinance (Cap. 609, Laws of Hong Kong), s. 89(2)(f)(ii).).

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

Costs: If an application for leave to enforce an award to which the New York Convention applies is not made to the judge in charge of the Construction and Arbitration List, costs may be awarded against the applicant.

(Source: Paklito Investment Ltd v. Klockner East Asia Ltd [1993] 2 HKLR 39; Practice Direction 6.1 (‘Construction and Arbitration List’).)

The general principle in Hong Kong is that a party unsuccessful in seeking to set aside an award will pay costs on an indemnity basis.

(Source: A v. R [2009] 3 HKLRD 389; Gao Haiyan & Anor v. Keeneye Holdings Ltd & Anor (No 2) [2012] 1 HKC 491; Pacific China Holdings Ltd (in Liquidation) v. Grand Pacific Holdings Ltd CACV 136/2011, 9 May 2012.)

Security: There is no obligation on the applicant to provide security as a condition for seeking recognition and enforcement of an award. However, where the respondent seeks to set aside the order enforcing the award, the court may, exercising its discretion or upon the applicant’s request, order that security be provided by the respondent.

(Source: Rules of the High Court (Cap. 4A, Laws of Hong Kong), Order 73 r10A.)

Country Rapporteur: Kim Rooney

---