Hong Kong—formalities, scope and separability of the arbitration agreement
Hong Kong—formalities, scope and separability of the arbitration agreement

The following Arbitration guidance note provides comprehensive and up to date legal information covering:

  • Hong Kong—formalities, scope and separability of the arbitration agreement
  • What is an arbitration agreement?
  • Arbitration agreement to be recorded in writing
  • Scope of an arbitration agreement
  • Doctrine of separability

This Practice Note provides, from the perspective of Hong Kong law and practice, an overview of the main characteristics of an arbitration agreement, sets out its formalities, and explores the question of its scope and the doctrine of separability that renders an arbitration agreement separable from the contract containing it.

Note: The Hong Kong cases referred to below are not reported by LexisNexis® UK.

What is an arbitration agreement?

Section 19 of the Arbitration Ordinance (Cap 609) (AO) defines an 'arbitration agreement' to be an agreement to submit to arbitration all or certain disputes, which have arisen or which may arise between parties in respect of a defined legal relationship, whether contractual or not.

An arbitration agreement may be made before or after a dispute has arisen, albeit it is much more common for parties to have agreed to arbitrate while still on friendly terms. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. An arbitration agreement must be recorded in writing.

Examples of non-contractual legal relationships that can give rise to arbitrable disputes can include legal relationships based on tort, trusteeship, a third-party interference with contractual relations, infringement of trademark, or unfair competition. It has been suggested by commentators that the ‘defined legal relationship’ requirement has very