On 12th February 2008, Ms Teresa Cheng, BBS, SC, JP gave a talk at the HKIAC on the Importance of Supervisory Jurisdiction of the Courts, being the second session of the Hong Kong Institute of Arbitrators’ (“HKIArb”) Practitioner’s Guide to ADR and Arbitration. Ms Cheng is a Chartered Arbitrator and a fellow of various arbitral bodies including the HKIArb.

Ms Cheng opened her talk on issues of conflicts of interests of arbitrators. She looked at published guidelines on interviewing of prospective arbitrators, guidelines on conflicts of interest in international arbitrations and guidelines for arbitrators in commercial disputes.

Ms Cheng discussed safeguards regarding procedural fairness in arbitration. She considered the definition of “award” in the context of the recently published draft arbitration Bill, the current Ordinance and the UNCITRAL Model Law. Ms Cheng suggested that the issue of whether a procedural order amounts to a substantive award depends on the facts of the case.

Ms Cheng discussed the court’s powers in relation to section 2GC of the Arbitration Ordinance regarding special powers in relation to arbitration proceedings and section 2GG of the Arbitration Ordinance regarding enforcement of award, order or direction made in arbitration proceedings in the same way as a court judgment.

Ms Cheng also mentioned the recently adopted UNCITRAL Articles 17A to 17J, which are part of the proposed amendments in the draft Arbitration Bill. Ms Cheng suggested that the court’s backing is important, for example in relation to preserving the subject matter of the dispute. Ms Cheng said Hong Kong may be one of the few jurisdictions to adopt UNCITRAL Articles 17A to 17J in the proposed Arbitration Bill.

In relation to anti-suit injunctions, Ms Cheng looked at the cases of the Angelic Grace (No. 2) [1995] 1 Lloyd’s Rep 87 and SGS v. Pakistan ICSID Case No. ARB/01/13, Decision of the Tribunal on Objections to Jurisdiction (August 6, 2003) (the latter case concerned an application for an anti-suit injunction made by the arbitral tribunal). Ms Cheng suggested that the arbitral tribunal should not be hesitant to protect its own jurisdiction over the subject matter of the dispute.

Ms Cheng also talked about recourse against awards, namely sections 23, 24 and 25 of the Arbitration Ordinance, Cap. 341, in relation to domestic arbitration and Article 34 of the UNCITRAL Model Law for international arbitration.

Ms Cheng said the proposed amendments in the draft Arbitration Bill regarding recourse against an award are in line with the international regime under the UNCITRAL Model Law (with an opt-in provision for leave to appeal on a point of law). Ms Cheng concluded the talk by considering the pros and cons of the supervisory jurisdiction of the courts, including factors such as finality of the award, development of local jurisprudence and confidence in the arbitral process.

Following questions from the audience, members gave their thanks to Ms Cheng in the usual way.

Reported by John Y C Lee, FHKIArb