Hong Kong Regulations

THE RULES OF THE SUPREME COURT - ORDER 73

ARBITRATION PROCEEDINGS

Caution: This is a past version. See the current version here.

2. Matters for a judge in court (O. 73 r. 2)

(1) Subject to section 2D of the Arbitration Ordinance ( Cap 341), every
application or request to the Court-

   (a)  to remit an award under section 24 of that Ordinance, or

   (b)  to remove an arbitrator or umpire under section 25(1) of that
        Ordinance, or

   (c)  to set aside an award under section 25(2) of that Ordinance, or
        (HK)(d) for leave to appeal under section 23(2) of that Ordinance, or

   (e)  to determine, under section 23A(l) of that Ordinance, any question of
        law arising in the course of a reference, or (HK)(f) to make an order
        under section 29A(2) of that Ordinance, or (HK)(g) to decide, under
        article 13(3) of the Fifth Schedule to that Ordinance, on a challenge
        to an arbitrator, or (L.N. 363 of 1990) (HK)(h) to decide, under
        article 14(1) of the Fifth Schedule to that Ordinance, on the
        termination of an arbitrator's mandate, or (L.N. 363 of 1990) (HK)(i)
        to set aside an arbitral award under article 34 of the Fifth Schedule
        to that Ordinance, (L.N. 363 of 1990) must be made by originating
        motion to a single judge in court. (L.N. 363 of 1990)

(2) Any appeal to the High Court under section 23(2) of the
Arbitration Ordinance ( Cap 341) shall be made by originating motion to a
single judge in court and notice thereof may be included in the notice of
application for leave to appeal, where leave is required.

(3) An application for a declaration that an award made by an arbitrator or
umpire is not binding on a party to the award on the ground that it was made
without jurisdiction may be made by originating motion to a single judge in
court, but the foregoing provision shall not be taken as affecting the judge's
power to refuse to make such a declaration in proceedings begun by motion.

3. Matters for judge in chambers or master (O. 73 r. 3)

(1) Subject to the foregoing provisions of this Order and the provisions of
this rule, the jurisdiction of the High Court or a judge thereof under the
Arbitration Ordinance ( Cap 341), may be exercised by a judge in chambers or a
master.

(2) Any application-

   (a)  for leave to appeal under section 23(2) of the Arbitration  Ordinance
        ( Cap 341), or

   (b)  under section 23(5) of that Ordinance (including any application for
        leave), or

   (c)  under section 23 of that Ordinance, or (HK)(d) under section 29A of
        that Ordinance, shall be made to a judge in chambers.

(3) Any application to which this rule applies shall, where an action is
pending, be made by summons in the action, and in any other case by an
originating summons which shall be in Form No. 10 in Appendix A.

(4) Where an application is made under section 23(5) of the
Arbitration Ordinance ( Cap 341) (including any application for leave) the
summons must be served on the arbitrator or umpire and on any other party to
the reference.

5. Time limits and other special provisions as to appeals
and applications under the Arbitration Ordinance
(O. 73 r. 5)

(1) An application to the Court-

   (a)  to remit an award under section 24 of the Arbitration Ordinance (
        Cap 341), or

   (b)  to set aside an award under section 25(2) of that Ordinance or
        otherwise, or

   (c)  to direct an arbitrator or umpire to state the reasons for an award
        under section 23(5) of that Ordinance, must be made, and the summons
        or notice must be served, within 21 days after the award has been made
        and published to the parties.

(2) In the case of an appeal to the Court under section 23(2) of the
Arbitration Ordinance ( Cap 341), the notice must be served, and the appeal
entered, within 21 days after the award has been made and published to the
parties: Provided that, where reasons material to the appeal are given on a
date subsequent to the publication of the award, the period of 21 days shall
run from the date on which the reasons are given.

(3) An application, under section 23A(1) of the Arbitration  Ordinance (
Cap 341), to determine any question of law arising in the course of a
reference, must be made, and notice thereof served, within 14 days after the
arbitrator or umpire has consented to the application being made, or the other
parties have so consented.

(4) For the purpose of paragraph (3) the consent must be given in writing.

(5) In the case of every appeal or application to which this rule applies, the
notice of originating motion, or as the case may be, the originating summons,
must state the grounds of appeal or application and, where the appeal or
application is founded on evidence by affidavit, or is made with the consent
of the arbitrator or umpire or of the other parties, a copy of every affidavit
intended to be used, or as the case may be, of every consent given in writing,
must be served with that notice.

6. Applications and appeals to be heard
in a particular list (O. 73 r. 6)

(1) Any matter which is required, by rule 2 or 3, to be heard by a judge,
shall be entered in a particular list unless the Judge in charge of such list
otherwise directs.

(2) Nothing in the foregoing paragraph shall be construed as preventing the
powers of the Judge in charge of a particular list from being exercised by any
judge of the High Court.

7. Service out of the jurisdiction of summons,
notice, etc. (O. 73 r. 7)

(HK)(1) Subject to paragraph (1A), service out of the jurisdiction of-

   (a)  any originating summons or notice of originating motion under the
        Arbitration Ordinance ( Cap 341), or

   (b)  any order made on such a summons or motion as aforesaid, is
        permissible with leave of the Court provided that the arbitration to
        which the summons, motion or order relates is granted by Hong Kong law
        or has been, is being, or is to be held within the jurisdiction.

(1A) Service out of the jurisdiction of an originating summons for leave to
enforce an award is permissible with the leave of the Court whether or not the
arbitration is governed by Hong Kong law.

(2) An application for the grant of leave under this rule must be supported by
an affidavit stating the grounds on which the application is made and showing
in what place or country the person to be served is, or probably may be found;
and no such leave shall be granted unless it shall be made sufficiently to
appear to the Court that the case is a proper one for service out of the
jurisdiction under this rule.

(3) Order 11, rules 5, 6 and 8, shall apply in relation to any such summons,
notice or order as is referred to in paragraph (1) as they apply in relation
to a writ.

8. Registration in High Court of
foreign awards (O. 73 r. 8)

Where an award is made in proceedings on an arbitration in any territory to
which sections 3 to 9 of the Foreign Judgments (Reciprocal Enforcement) 
Ordinance ( Cap 319) extend, being a part to which the said Ordinance has been
applied, then, if the award has, in pursuance of the law in force in the place
where it was made, become enforceable in the same manner as a judgment given
by a court in that place, Order 71 shall apply in relation to the award as it
applies in relation to a judgment given by that court, subject, however, to
the following modifications-

   (a)  for references to the country of the original court there shall be
        substituted references to the place where the award was made; and

   (b)  the affidavit required by rule 3 of the said Order must state

(in addition to the other matters required by that rule) that to the best of
the information or belief of the deponent the award has, in pursuance of the
law in force in the place where it was made, become enforceable in the same
manner as a judgment given by a court in that place.

9. Registration of awards under Arbitration
(International Investment Disputes)
Act 1966 (O. 73 r. 9)

(1) In this rule and in any provision of these rules as applied by this rule-
"the Act of 1966" (1966年法令) means the Arbitration (International
Investment Disputes) Act 1966 (1966 c. 41 U.K.); "award" (裁決) means an
award rendered pursuant to the Convention; "judgment creditor"
(判定債權人) and "judgment debtor" (判定債務人) mean respectively
the person seeking recognition or enforcement of an award and the other party
to the award.

(2) Subject to the provisions of this rule, the following provisions of Order
71, namely rules 3(1) (except subparagraphs (c)(iv) and (d) thereof), 7
(except paragraph (3)(c) and (d) thereof) and 10(3) shall apply with the
necessary modifications in relation to an award as they apply in relation to a
judgment to which the Foreign Judgments  (Reciprocal Enforcement) Ordinance (
Cap 319) applies.

(3) An application to have an award registered in the High Court under
section 1 of the Act of 1966 shall be made by originating summons which shall
be in Form 10 in Appendix A.

(4) The affidavit required by Order 71, rule 3, in support of an application
for registration shall-

   (a)  in lieu of exhibiting the judgment or a copy thereof, exhibit a copy
        of the award certified pursuant to the Convention; and

   (b)  in addition to stating the matters mentioned in paragraph

(1)(c)(i) and (ii) of the said rule 3, state whether at the date of the
application the enforcement of the award has been stayed (provisionally or
otherwise) pursuant to the Convention and whether any, and if so what,
application has been made pursuant to the Convention, which, if granted, might
result in a stay of the award.

(5) There shall be kept in the Registry under the direction of the Registrar a
register of the awards ordered to be registered under the Act of 1966 and
particulars shall be entered in the register of any execution issued on such
an award.

(6) Where it appears to the Court on granting leave to register an award or on
an application made by the judgment debtor after an award has been registered-

   (a)  that the enforcement of the award has been stayed (whether
        provisionally or otherwise) pursuant to the Convention; or

   (b)  that an application has been made pursuant to the Convention, which,
        if granted, might result in a stay of the enforcement of the award,
        the Court shall, or, in the case referred to in subparagraph (b) may,
        stay execution of the award for such time as it considers appropriate
        in the circumstances.

(7) An application by the judgment debtor under paragraph (6) shall be made by
summons and supported by affidavit. (L.N. 363 of 1990)

10. Enforcement of settlement agreement under section 2C
of the Arbitration Ordinance or of award under
section 2H of that Ordinance (O. 73 r. 10)

(1) An application for leave- (HK)(a) under section 2C of the
Arbitration Ordinance ( Cap 341) to enforce a settlement agreement, or (L.N.
363 of 1990)

   (b)  under section 2H of that Ordinance to enforce an award on an
        arbitration agreement, (L.N. 363 of 1990) in the same manner as a
        judgment or order may be made ex parte but the  Court hearing the
        application may direct a summons to be issued.

(2) If the Court directs a summons to be issued, the summons shall be an
originating summons which shall be in Form No. 10 in Appendix A.

(3) An application for leave must be supported by affidavit-

   (a)  exhibiting- (HK)(i) where the application is under section 2C of the
        Arbitration Ordinance ( Cap 341), the arbitration agreement and the
        original settlement agreement or, in either case, a copy thereof;
        (L.N. 363 of 1990)

        (ii)   where the application is under section 2H of the Arbitration 
               Ordinance ( Cap 341), the arbitration agreement and the
               original award or, in either case, a copy thereof; (L.N. 363 of
               1990)

        (iii)  where the application is under section 42(1) of the
               Arbitration Ordinance ( Cap 341), the documents required to be
               produced by section 43 of that Ordinance,

   (b)  stating the name and the usual or last known place of abode or
        business of the applicant (hereinafter referred to as "the creditor")
        and the person against whom it is sought to enforce the settlement
        agreement or award (hereinafter referred to as "the debtor")
        respectively,

   (c)  as the case may require, either that the settlement agreement or award
        has not been complied with or the extent to which it has not been
        complied with at the date of the application.

(4) An order giving leave must be drawn up by or on behalf of the  creditor
and must be served on the debtor by delivering a copy to him personally or by
sending a copy to him at his usual or last known place of abode or business or
in such other manner as the Court may direct.

(5) Service of the order out of the jurisdiction is permissible without leave,
and Order 11, rules 5, 6 and 8, shall apply in relation to such an order as
they apply in relation to a writ.

(6) Within 14 days after service of the order or, if the order is to be served
out of the jurisdiction, within such other period as the  Court may fix,
the debtor may apply to set aside the order and the settlement agreement or
award shall not be enforced until after the expiration of that period or, if
the debtor applies within that period to set aside the order, until after the
application is finally disposed of. (HK)(6A) An application under paragraph
(6) to set aside the order must be made by summons supported by affidavit, and
such affidavit must be filed at the same time as the summons. (L.N. 127 of
1995)

(7) The copy of the order served on the debtor shall state the effect of
paragraph (6).

(8) In relation to a body corporate this rule shall have effect as if for any
reference to the place of abode or business of the creditor or the debtor
there were substituted a reference to the registered or principal address of
the body corporate; so, however, that nothing in this rule shall affect any
enactment which provides for the manner in which a document may be served on a
body corporate.

(HK)10A. Other provisions as to applications
to set aside an order made under
rule 10 (O. 73 r. 10A)

(HK) Where a debtor has applied to set aside an order made under rule 10,
the Court may, either of its own motion or on an application made by
the creditor, and if, having regard to all the circumstances of the case it
thinks it just to do so, impose such terms, as to giving security or
otherwise, as a condition of the further conduct of the application, as it
thinks fit. (L.N. 167 of 1994)

11. Payments into court (O. 73 r. 11)

(HK)(1) In any arbitration proceedings any party to the reference may at any
time pay into court a sum of money in satisfaction of any claim against him
under the reference.

(2) On making payment into court under this rule, and on increasing any such
payment already made the party making payment must give notice thereof in Form
No. 100 in Appendix A to all other parties to the reference; and within 3 days
after receiving the notice the recipient parties must send the party making
payment a written acknowledgment of its receipt.

(3) A party who has made payment into court under this rule may, without
leave, give notice of an increase in such a payment but, subject to that and
without prejudice to paragraph (5), a notice of payment may not be withdrawn
or amended without leave of the Court which may be granted on such terms as
may be just.

(4) Where there are two or more matters in dispute in the arbitration
proceedings and money is paid into court under this rule in respect of all, or
some only of, those matters, the notice of payment-

   (a)  must state that the money is paid in respect of all those matters in
        dispute or, as the case may be, must specify the matters in respect of
        which payment is made, and

   (b)  where the party makes separate payments in respect of each, or any two
        of those matters in dispute, must specify the sum paid in respect of
        that matter or, as the case may be, those matters.

(5) Where a single sum of money is paid into court under this rule in respect
of two or more matters in dispute, then, if it appears to the  Court that any
party to the arbitration proceedings is embarrassed by the payment, the Court
may order the party making payment to amend the notice of payment so as to
specify the sum paid in respect of each matter in dispute.

(6) For the purposes of this rule, a claim under a reference to arbitration
shall be construed as a claim in respect, also, of such interest as might be
included in the award if the award were made at the date of the payment into
court.

12. Payment in by party who has
counterclaimed (O. 73 r. 12)

(HK) Where a party, who makes by counterclaim in the arbitration proceedings a
claim against any other party to the arbitration proceedings, pays a sum or
sums of money into court under rule 11, the notice of payment must state if it
be the case, that in making the payment he has taken into account and intends
to satisfy the matter in dispute, or matters in dispute, as the case may be,
under his counterclaim.

13. Acceptance of money paid into court (O. 73 r. 13)

(HK)(1) Where money is paid into court under rule 11, then, subject to
paragraph (2), within 14 days after the receipt of the notice of payment or,
where more than one payment has been made or the notice has been amended,
within 14 days after receipt of the notice of the last payment or the amended
notice but, in any case, before the hearing of the arbitration proceedings
begins, a party to the arbitration proceedings may-

   (a)  where the money was paid in respect of the matter in dispute or all
        the matters in dispute in respect of which he claims, accept the money
        in satisfaction of that matter in dispute or those matters in dispute,
        as the case may be, or

   (b)  where the money was paid in respect of some only of the matters in
        dispute in respect of which he claims, accept in satisfaction of any
        such matter in dispute the sum specified in respect of that matter in
        dispute in the notice of payment, by giving notice in Form No. 101 in
        Appendix A to all other parties to the arbitration proceedings.

(2) Where after the hearing of the arbitration proceedings has begun-

   (a)  money is paid into court under rule 11, or

   (b)  money in court is increased by a further payment into court under that
        rule, any party may accept the money in accordance with paragraph (1)
        within 2 days after receipt of the notice of payment or notice of the
        further payment, as the case may be, but, in any case, before the
        arbitrator publishes his award.

(3) Rule 11(5) shall not apply in relation to money paid into court after the
hearing of the arbitration proceedings has begun.

(4) On a party accepting any money paid into court all further proceedings in
the arbitration proceedings or in respect of the specified matter in dispute
or matters in dispute, as the case may be, to which the acceptance relates
shall be stayed.

(5) Where money is paid into court by a party who made a counterclaim in the
arbitration proceedings and the notice of payment stated, in relation to any
sum so paid, that in making the payment the party had taken into account and
satisfied the matter in dispute, or matters in dispute, as the case may be, in
respect of which he claimed, then, on the claimant party accepting that sum,
all further proceedings on the counterclaim or in respect of the specified
matter or matters in dispute, as the case may be, shall be stayed.

(6) A party to arbitration proceedings who has accepted any sum paid into
court shall, subject to rule 14, be entitled to receive payment of that sum in
satisfaction of the matter or matters in dispute to which the arbitration
proceedings relate.

14. Order for payment out of money accepted
required (O. 73 r. 14)

(HK)(1) Where a party to arbitration proceedings accepts any sum paid into
court and that sum was paid into court by some but not all of the other
parties to the arbitration proceedings the money in court shall not be paid
out except under paragraph (2) or in pursuance of an order of the Court, and
the order shall deal with the whole costs of the arbitration proceedings or
the matter in dispute to which the payment relates, as the case may be.

(2) Where an order of the Court is required under paragraph (1), then if,
either before or after accepting the money paid into court by some only of the
other parties the party discontinues the arbitration proceedings against all
the other parties and those parties consent in writing to the payment out of
that sum, it may be paid out without an order of the Court.

(3) Where after the hearing of the arbitration proceedings has begun a
claimant party accepts any money paid into court and all further proceedings
in the arbitration proceedings or in respect of the matter in dispute or
matters in dispute, as the case may be, to which the acceptance relates are
stayed by virtue of rule 13(4), then, notwithstanding anything in paragraph
(2), the money shall not be paid out except in pursuance of an order of
the Court, and the order shall deal with the whole costs of the arbitration
proceedings or with the costs relating to the matter in dispute or matters in
dispute as the case may be, to which the arbitration proceedings relate.

15. Money remaining in court (O. 73 r. 15)

(HK) If any money paid into court in connection with arbitration proceedings
is not accepted in accordance with rule 13, the money remaining in court shall
not be paid out except in pursuance of an order of the Court which may be made
at any time before during or after the hearing of the arbitration proceedings;
and where such an order is made before the hearing the money shall not be paid
out except in satisfaction of the matter or matters in dispute in respect of
which it was paid in.

16. Counterclaim (O. 73 r. 16)

(HK) A party to arbitration proceedings against whom a counterclaim is made
may pay money into court in accordance with rule 11, and that rule and rules
13 (except paragraph (5)), 14 and 15 shall apply accordingly with the
necessary modifications.

17. Non-disclosure of payment into court; amendment of
arbitrator's award (O. 73 r. 17)

(HK) Except in arbitration proceedings in which all further proceedings are
stayed after the hearing has begun by virtue of rule 13(4), the fact that
money has been paid into court under the foregoing provisions of this Order
shall not be communicated to the arbitrator until he has published his award,
whereupon the arbitrator may amend his award by adding thereto such directions
as he may think proper with respect to the payment of the costs of the
reference.

18. Investment of money in court (O. 73 r. 18)

(HK) Cash under the control of or subject to the order of the Court may be
invested in any manner specified in the Supreme Court Suitors' Funds Rules (
Cap 4 sub. leg.) and the Trustee Ordinance ( Cap 29). (Enacted 1988) "the Act
of 1966" (1966年法令) "award" (裁決) "judgment creditor"
(判定債權人) and "judgment debtor" (判定債務人)