New Practice Note from HKIAC on Arbitrator Challenges

New Practice Note from HKIAC on Arbitrator Challenges

The Hong Kong International Arbitration Centre (HKIAC) released today a revised version of its Practice Note on the Challenge of an Arbitrator (the PNCA), which was last revised in November 2013. The PNCA codifies procedures for challenging an arbitrator under a range of rules into one document and creates a unitary system for filing and deciding such challenges.

The revised PNCA (effective as from 31 October 2014) replaces the HKIAC Challenge Rules adopted on 25 March 2008 and the Practice Note on the Challenge of an Arbitrator effective from 1 November 2013. It shall also be treated as the ‘Challenge Rules’ referred to in art 11.7 of the 2008 HKIAC Arbitration Rules (PNCA, para 2).

So what’s changed?

  • the PNCA expressly governs challenges to arbitrators in arbitrations administered by the HKIAC under: the HKIAC Rules 2013, the HKIAC Rules 2008, the UNCITRAL Arbitration Rules 2010 (with or without the incorporation of the Transparency Rules), the UNCITRAL Arbitration Rules 1976, any other arbitration rules issued by HKIAC which designate HKIAC to decide challenges to arbitrators, and, finally, in any arbitration in which the parties agree the PNCA shall apply. Accordingly, the PNCA has, potentially, much broader application than its previous incarnations
  • the grounds for challenge have also been expanded. PNCA, para 3 provides that an arbitrator many be challenged on ‘any grounds specified in the applicable arbitration rules or law’. This wording is wider in scope than para 2 of the 2013 version of the PNCA. Clearly, it contemplates the grounds for challenge in art 11. 6 of the HKIAC Arbitration Rules 2013 (which mirrors the former para 2), if the parties are arbitrating pursuant to those rules, but it is also clear that the available grounds for challenge will depend on the rules or law that the parties have agreed will govern their arbitration, whether it be HKIAC, UNCITRAL or some other rules. Accordingly, parties should consider this carefully if they decide to submit a Notice of Challenge under the PNCA to make sure that they are able to make the relevant challenge
  • if the challenging party wishes to amend or supplement the grounds of its challenge, the HKIAC is now obliged to consult with the non-challenging party and the Challenged Arbitrator when it makes its decision whether or not to allow the proposed changes (PNCA, para 9)
  • the revised PNCA makes express that the HKIAC is under no obligation to give reasons for its determination of a challenge (PNCA, para 14). Under the 2013 version of the rules, it was in the discretion of the HKIAC to decide whether or not to support its determination with reasons. This change shifts the emphasis away from giving any reasons, which, arguably, lacks transparency
  • there is a new paragraph dealing with communications of notices, documents and decisions (PNCA, para 15)
  • there is a new conflicts provision, which provides that in the event of any discrepancy or inconsistency between the PNCA and any provision of the arbitration agreement(s) or any applicable arbitration rules or law, that provision shall prevail (PNCA, para 16)

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About the author:

Barry specialises in international arbitration and commercial litigation. He trained and practised at Jones Day before joining Pinsent Masons. At LexisNexis, Barry is Head of Arbitration and Head of the Lexis®PSL Dispute Resolution Group.

In practice, Barry’s work included commercial, aviation and technology arbitrations pursuant to international arbitral rules, involving UK and international clients. He also has a background in general commercial, civil fraud and IT litigation, including experience before the High Court. While in private practice, Barry worked with a broad range of clients from the private and public sectors.

At LexisNexis, when not focused on the strategic development and operational requirements of the Dispute Resolution Group, Barry’s content work focuses on the law and practice of international commercial arbitration and investment treaty arbitration. In addition to his work for Lexis®PSL, Barry contributes to the LexisNexis Dispute Resolution Blog and New Law Journal on litigation and arbitration matters