INTERNATIONAL ARBITRATION 1/3LY
MARKET COMMENTARY 11
ANO THER T I LT AT THE W INDMI L L :
The Hong Kong Court of First Instance recently gave judgment on a quixotic claim brought against the Hong Kong International Arbitration Centre (“HKIAC”) by the claimant in an arbitration which it was administering. The plaintiff, Mr Gong Benhai, a disgruntled party to an arbitration governed by HKIAC rules, made an application to the Court earlier this year, requesting that it set aside the HKIAC’s decision to reject his request to replace two members of the tribunal. Mr Dong had earlier unsuccessfully challenged their appointment, alleging bias and unfairness in an arbitration which the HKIAC was administering. In rejecting Mr Gong’s claims, the Court determined that it was prohibited from intervening because the claimwas time-barred. It also noted that HKIAC was not the proper defendant to the proceedings. The decision sits well with Hong Kong’s reputation as a non-interventionist jurisdiction and highlights the Hong Kong courts’ reluctance to interfere in matters concerning the administrative decisions of arbitral institutions. It also confirms the HKIAC’s immunity, afforded to it by section 105 of Hong Kong’s Arbitration Ordinance (Cap 609), when honestly performing its administrative functions. BACKGROUND TO THE CHALLENGE In August 2012 the Claimant, Mr Gong and Dan Dong, a Chinese tyre company, entered into a written arbitration agreement which provided that the HKIACwould act as administering body. Mr Gong commenced arbitration proceedings against Dan Dong the followingmonth and the HKIAC duly formed a tribunal of three arbitrators in February 2013. A fewmonths later, Mr Gongmade an application for disclosure. Although the order was granted, the tribunal allowed Dan Dong to redact certain confidential information, such as personal information belonging to employees. Mr Gong was so unhappywith this decision that he requested the replacement of two of the arbitrators, alleging bias and unfairness. The HKIAC Council considered the challenge to the arbitrators in accordance with the HKIAC Challenge Rules 2008, which provide the bases uponwhich an arbitrator before the HKIAC can be challenged. In August 2013, the HKIAC Council appointed a subcommittee to deal with the challenge, whichwas ultimately dismissed on the grounds that it was not supported by any substantial evidence. The parties were informed of the Council’s decision on 24 December 2013. On 14 February 2014, Mr Gong sought external relief by issuing an originating summons naming HKIAC as the sole defendant. He asked the Court to set aside HKIAC’s decision; order the HKIAC to re-hear the challenge and provide reasons for its decision; stay the arbitration proceedings and replace the two arbitrators who were the subject of his challenge.
THE HONG KONG COUR T OF F I RS T INS TANCE CONF I RMS ROBUS T SUPP OR T FOR A RB I T R A L INDEPENDENCE
BY JAMES MCKENZIE, REGISTERED FOREIGN L AWYER AT CLYDE & CO
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