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heir rights to appeal on a question of law, or making a reference to the court on a question of law by an arbitrator when the parties consent to oust the Hong Kong jurisdiction after the arbitration is started. [43] In international situations, the only judicial control can be found when there is a serious irregularity which affects the tribunal, the proceedings or the award. In this case, the permission of appeal would be a remedy which gives effort to the compliance with ordinary standards of impartiality, fairness as well as the particular procedural requirements of arbitration. [44]

Law Application in Domestic and International Arbitration

In a domestic Hong Kong arbitration in which the right of appeal is not excluded, an award may subject to an appeal or reference on a question of law. In general, arbitrators oblige to determine the referred disputes in a domestic Hong Kong dispute according to Hong Kong law since failure to do so may lead to an appeal. When the parties are so agreed, the tribunal may determine the dispute in accordance with the considerations as agreed by the parties or decided by the tribunal. [45] Hence, an award may not be made on the basis of law even the parties so agree.

Unlike domestic arbitration, various legal systems may apply in an international arbitration. Tribunals oblige to regard all the different legal systems including the substantive law which governs the substance of the dispute, the law governs the arbitration agreement, the law of the seat which governs the conduct of the arbitration, the law governs award enforcement and the mandatory rules of a jurisdiction when performance of an agreement has an effect. [46] In addition, the tribunal may aware the application of the conflict of law rules of the above-mentioned laws. In HK, no arbitrator should bind to follow the conflict of law rules of the country in which the arbitration seated and free to apply law when they considers applicable. [47]

The Mandatory Rules of the Rome Convention

The European Convention on the Law Applicable to Contractual Obligation (“the Rome Convention”) demonstrated a tribunal must give practical consideration to the mandatory rules of other systems in which the case has a close nexus. [48] If the mandatory rules in the place of enforcement failed to consider by the tribunal, it may create difficulties on the enforceability of the arbitral award. The tribunal must also consider the possibility of the overall consequences of the dispute which will be affected when mandatory rules are invoked by one of the parties to the courts of another jurisdiction. [49] Bowsher (2005) commented a tribunal is unlikely applying law in the identical manner as a national judge even it will apply the systems of law in normal circumstances when it thinks it would be appropriate to do so. [50]

Challenged Features of Commercial Arbitration

Mainly, the advantages of arbitration can be concluded as parties from different countries may have a free choice to appoint a panel of neutral arbitrators, who may be experts in the relevant area, and to come off the arbitration in a neutral location. Besides, the arbitration process has to conduct subject to strict obligations of confidentiality and privacy. As to the arbitration procedure, it is flexible. Hence, the disputes can be resolved more quickly and cheaply than litigation. Last but not leas