ARCHIVED: This Practice Note has been archived and is not maintained. UNDER REVIEW: This Practice Note is under review in light of Dickson Valora Group v Fan Ji Qian [2019] HKCU 638. General principle—minimal interference The primary aim of the Arbitration Ordinance, Chapter 609 (AO) is to ensure party autonomy in the arbitral process with minimum court intervention. One of the principles of the AO is that the court should interfere in the arbitration of a dispute only as expressly provided for in the ordinance. The AO gives effect to article 5 of the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), which provides that the court shall not intervene in arbitration proceedings except where so provided in the law. Under the AO, the Hong Kong courts have been granted certain powers which they can use to support the arbitral process. In particular, under AO, ss 45 and 60, the Hong Kong courts have independent

Loan market and developments Please provide a brief overview of the current state of the loan markets in your jurisdiction and any significant recent market developments With its position as the financial centre of the Asia Pacific region and as a source of Chinese offshore borrowing, Hong Kong is one of the largest and most active syndicated loan markets in the Asia Pacific region (excluding Japan), frequently accounting for over 20% of the total syndicated loan volume in the Asia Pacific region (excluding Japan). The continued period of low interest rates and ample liquidity in the banking system in Hong Kong has ensured that loans are readily available for those who wish to borrow. According to Bloomberg, within the sustainability-linked loan market, Hong Kong topped the Asia Pacific region (excluding Japan), contributing an unprecedented level of 31.4% to the total volume of these kinds of loans. This huge demand has also led to an increase of deals issued in HKD, making HKD the second largest currency in the sustainability-linked loan market for H1 2024. Please

Arbitration analysis: The Hong Kong Court of First Instance (the court) determined an application by the unsuccessful respondent (S) in a China International Economic and Trade Arbitration Commission arbitration seated in Mainland China (the Arbitration). An arbitral award handed down on 3 July 2020 required S to (i) continue to perform its obligations (the specific performance order) under a 2018 co-operation agreement (the Agreement); (ii) pay certain marketing costs, (iii) provide samples, and (iv) pay costs. On 25 September 2020, the court granted an enforcement order of the award in favour of the applicant (G). S applied to have the enforcement order set aside on the grounds that (i) the enforcement of the specific performance order was contrary to public policy; (ii) the other orders were outside the scope of the arbitration agreement. The court was also required to consider whether the orders contained in an arbitral award could be severable and enforced separately. The application was dismissed. Written by Andrew Rigden Green, partner and head of International Arbitration, Greater China, Stephenson Harwood, Hong Kong.

ARCHIVED: This Practice Note has been archived and is not maintained. STOP PRESS: This Practice Note is being reviewed in light of the decision in Xiamen Xinjingdi Group Co Ltd v Eton Properties Limited and Others [2020] HKCFA 32 and the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region. The recognition and enforcement of Mainland awards A successful party in a Mainland China arbitration (as defined below) may enforce the award in Hong Kong either: • under the common law, by commencing an action based on an implied promise to perform the award (commonly called an ‘action on the award’), or • under statute, by a summary process provided in the Hong Kong Arbitration Ordinance, Chapter 609 (Cap 609) (AO) Common law actions on Mainland awards in Hong Kong As an alternative

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note considers the grounds for potentially refusing the recognition and enforcement of New York Convention arbitral awards under the law of Hong Kong. It should be read in conjunction with Practice Note: Hong Kong—enforcement—New York Convention arbitration awards—procedure, as well as the other ‘Related documents’. Refusal of enforcement of a New York Convention awards in Hong Kong Enforcement of a Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) award may not be refused except in the specific cases mentioned in section 89(2) of the Arbitration Ordinance, Chapter 609 (AO). The burden of proving a ground for non-enforcement is on the defendant. These grounds are exhaustive, and the court still has a residual discretion to allow enforcement even where a ground is made out. There is a strong presumption that the court will grant leave in favour of enforcement of New York Convention awards. The grounds of

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note considers the recognition and enforcement of New York Convention arbitral awards under the law of Hong Kong. It should be read in conjunction with Practice Note: Hong Kong—enforcement—New York Convention arbitration awards—grounds of refusal, as well as the other ‘Related documents’. The legal framework for the recognition and enforcement of New York Convention awards in Hong Kong The New York Convention is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 adopted by the United Nations Conference on the International Commercial Arbitration and held at New York on 10 June 1958. For an introduction to the New York Convention, see Practice Note: The New York Convention—the recognition and enforcement of arbitral awards—an introduction. Section 87 of the Arbitration Ordinance, Chapter 609 (AO) and rule 10 of Order 73 of the Rules of the High Court, Chapter 4A (RHC) are the provisions relating to enforcement of a New York Convention

ARCHIVED: This Practice Note has been archived and is not maintained. STOP PRESS: This Practice Note is being reviewed in light of the decision in Xiamen Xinjingdi Group Co Ltd v Eton Properties Limited and Others [2020] HKCFA 32. A successful party in an arbitration may enforce the award in Hong Kong either: • under statute, by a summary process provided in the Arbitration Ordinance (Cap 609), or • under common law, by commencing an action based on an implied promise to perform an award (commonly called an ‘action on the award’) (Xiamen Xinjingdi Group Co Ltd v Eton Properties Ltd [2016] 2 HKLRD 1106) This Practice Note considers actions on the arbitration award under Hong Kong law. For guidance on enforcement under statute in Hong Kong, see Practice Notes: Hong Kong—enforcement—New York Convention arbitration awards—procedure, Hong Kong—enforcement—New York Convention arbitration awards—grounds of refusal, Hong Kong—enforcement—non-New York Convention and non-Mainland China arbitration awards and Hong Kong—enforcement—Mainland China arbitration awards. Note: judgments of

ARCHIVED: This Practice Note has been archived and is not maintained. An introduction to the recognition and enforcement of non-New York Convention and non-Mainland China awards Enforcement of arbitral awards: • issued in arbitrations seated in Hong Kong • not made under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (non-New York Convention awards), and • non-Mainland awards made whether in or outside Hong Kong, are all governed and are subject to the same regime of enforcement under the Arbitration Ordinance, Chapter 609 (AO) The relevant provisions of the AO An award, whether made in or outside Hong Kong, in arbitral proceedings by an arbitral tribunal is enforceable in the same manner as a judgment of the Court of First Instance of the High Court that has the same effect, but only with the leave of the court. This provision is subject to the court's discretion to refuse to grant leave for enforcement of the award made by the arbitral

Hong Kong and the Mainland were members of the New York Convention prior to the handover on 1 July 1997. However, the New York Convention is only applicable to enforcement of arbitral awards between two different contracting countries, but not inter-provincial or inter-regional enforcement within the same state. In order to resolve the problem of enforcement, Hong Kong and the Mainland authorities subsequently concluded the ‘Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region’. Note: Hong Kong judgments below are not reported by LexisNexis®. Mainland awards A successful party in a mainland arbitration may enforce the award in Hong Kong either: • under the common law, by commencing an action based on an implied promise to perform the award (commonly called an ‘action on the award’), or • under statute, by a summary process provided in the Arbitration Ordinance (Cap 609). This process dispenses with the full formalities of the action to enforce an award.

Note: Hong Kong judgments below are not reported by LexisNexis®. Refusal of enforcement of a Convention award Enforcement of a New York Convention (Convention) award may not be refused except in the specific cases mentioned in section 89 of the Arbitration Ordinance (Cap 609) (AO). The burden of proving a ground for non-enforcement is on the defendant. These grounds are exclusive and exhaustive, but the court still has residual discretion to allow enforcement even where a ground is made out. Having said that, where a ground of opposition to enforcement is established, the discretion is unlikely to be exercised in favour of enforcement even though there is a strong presumption that the court will generally grant leave in favour of enforcement of Convention awards. The grounds of opposition are not to be inflexibly applied, and the residual discretion enables the court to achieve a just result in all the circumstances (e.g. where a resisting party has breached its duty of good faith in the conduct

Note: Hong Kong judgments below are not reported by LexisNexis®. Introduction The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) was adopted by the United Nations Conference on the International Commercial Arbitration and held at New York on 10 June 1958. In the Arbitration Ordinance (Cap 609) (AO), the New York Convention is referred to as the Convention. Section 87 of the Arbitration Ordinance (Cap 609) (AO) and Order 73, rule 10 of the Rules of the High Court (Cap 4A) (RHC) are the provisions relating to enforcement of a Convention Award: • Evidence to be produced for enforcement of Convention awards (AO, s 88) • Refusal of enforcement of Convention awards (AO, s 89) Convention awards Convention award means an arbitral award made in a state or the territory of a state, other than China or any part of China, which is a party to the Convention. (AO, s 2(1)). United Nations maintain a list of the parties to the Convention and their status.

Note: Hong Kong judgments below are not reported by LexisNexis®. Introduction Enforcement of arbitral awards arising from arbitrations with their seats in Hong Kong, non-New York Convention (Convention) awards, non-Mainland and non-Macao awards made whether in or outside Hong Kong are governed and are subject to the same regime of enforcement under the Arbitration Ordinance (Cap 609) (AO). (AO, s 84). A successful party may enforce the award in Hong Kong either: • under the common law, by commencing an action based on an implied promise to perform the award (commonly called an ‘action on the award’), or • under statute, by a summary process provided in the Arbitration Ordinance (Cap 609). This process dispenses with the full formalities of the action to enforce an award. The successful party to the arbitration can apply ex parte (with a supporting affidavit) for leave of the court to enforce the award in the same way as if it were a judgment of the court Enforcing awards An award, whether made in