英语论文网

ive Dispute Resolution Services

3.1 Arbitration Law and its Practice

In the field of commercial arbitration, common standards of arbitration laws and principles increasingly shared by different jurisdictions among the world. Substantial national laws regarding international commercial arbitration adopt direct implementation of the UNCITRAL Model Law on International Commercial Arbitration (Model Law). HKSAR is one of the examples. [13] The Model Law provides a significant international standard regards the core issues and a series of arbitration rules which could be used frequently as the procedural groundwork for international arbitration. Not limit to this, the Model Law also has considerable effect on inspiring the improvement of domestic arbitration legislation in those countries which are not a signatory to the Model Law. [14]

The Arbitration Ordinance (Cap 341) (AO) of HK follows the English legislation which does not follow the Model Law in all particular parts. The English arbitration law bases itself on statutes, namely, the Arbitration Act 1996 which renders a comprehensive code for both international and domestic arbitration in England and Wales but not Scotland. [15] The situation is same in HK, the Arbitration Ordinance provides a detailed written rules for international arbitration under AO Part IIA while domestic arbitration can be found under AO Part II.

In order to enforce foreign awards, English arbitration law inevitably complies with obligations impose by various international conventions. Amongst all of these conventions, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards deemed as the most crucial one. It stipulates an operative efficacious measure of enforcement of arbitration awards in other signatories of the Convention. An award will be enforceable provided, the signatory obliges to implement the requisite standards of the Convention. [16] In HK, New York Convention reproduces in the Schedule 3 of Arbitration Ordinance.

3.2 Role of Arbitral Institutions and National Courts

Parties of arbitration are free to establish a valid arbitration by way of a suitable ad hoc agreement or select and appoint an arbitration institution to administer the dispute for them. Arbitration institutions, for instance, International Chamber of Commerce (ICC) and Hong Kong International Arbitration Center (HKIAC), provide wide range of services including both domestic and international arbitration, arbitration services in particular sectors especially in significant commercial centres, means for arbitral tribunal appointment and active supervision over the arbitration procedures. [17] Yet arbitration is a private process, we can see these arbitration institutions tend to offer a considerable degree of harmonization of arbitral practices by their guidelines and rules, plus the chance to promotion and communicating views with the arbitrators. [18]

In Manfredi [19] , a member state court, being a supervisor, obliges to consider if the issue has been duly considered by the arbitrator when granting the award. If not, the court may set aside or refuse to enforce the award. Hence, the role of national courts, for instance, the Court of First Instance, is influential in arbitration even it has limited role to play in the development of arbitration law. Under limited circumstances, courts will be involved