The following Arbitration guidance note provides comprehensive and up to date legal information covering:
This Practice Note provides an overview, from the perspective of Hong Kong law and practice, of some of the issues to consider when choosing the arbitration seat and emphasises the importance of giving serious thought to the choice of the arbitration seat at the contract drafting stage.
An arbitration clause should typically include, among other things, the governing law and the arbitration seat. While one could choose Hong Kong as the answer to both (eg the laws of Hong Kong shall apply to the substantive dispute, with Hong Kong as the seat), sometimes parties would prefer them separate (eg the laws of the People’s Republic of China shall apply, with Hong Kong as the seat) for various practical and/or tactical considerations.
The choice of the governing law dictates the law that applies for the substantive adjudication of the arbitration. On the other hand, in choosing the arbitration seat, the parties are, broadly speaking, choosing the procedural law that applies in case of arbitration. That is to say, if Hong Kong is selected as the arbitration seat, the laws of Hong Kong, and in particular the Arbitration Ordinance (Cap 609) (AO), shall apply in the procedural context. This has wide-ranging consequences, for example, for the enforcement of an award.
While the arbitration seat and the geographical location of the arbitration are often the same, as
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