Thematic Session on "Legal Risk Management: Key to International Trade and Investment" Session 1: International Dispute Resolution Mechanism
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1 Thematic Session on "Legal Risk Management: Key to International Trade and Investment" Session 1: International Dispute Resolution Mechanism Copyright 2017 The Law Society of Hong Kong. All Rights Reserved.
2 Why seat the reference in Hong Kong? Mr Denis Brock International Arbitrator Council Member, The Law Society of Hong Kong Managing Partner, O Melveny (Hong Kong) 7 November 2017 Copyright 2017 The Law Society of Hong Kong. All Rights Reserved.
3 HKG s effective arbitration law Sophisticated statutory framework adopting the UNCITRAL Model Law Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 Robust common law supporting and promoting arbitration 3
4 Support from the courts An established specialist arbitration court Construction and Arbitration List Established 1 st February
5 Independence of the courts The courts of the Hong Kong shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions. Art 85 This is not aspirational: it works in practice No judges from the mainland No interface with the mainland judicial system The Global Competitiveness Report ; for judicial independence the report ranks Hong Kong first (1st) in Asia and 13th globally ahead of Japan, Singapore, Germany and the United States. 5
6 Rule of law The law of Hong Kong is based on the rule of law and the independence of the judiciary Article 8 stipulates that all laws in force before 1997, including "the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region. Article 18 states that national laws, from the People's Republic of China do not apply, except for a specific list in Annex III to the Basic Law. However, this may only be in the fields of "defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law." 6
7 Court of Final Appeal s unique position A unique institution Judges from other common law jurisdictions are recruited and serve on the CFA: Art 92 Judges appointed pursuant to Article 92 have served in the judiciaries of England and Wales, Australia or New Zealand Not seen anywhere else in the world s judicial systems 7
8 Strength of the HKIAC, and other institutions in HKG Hong Kong International Arbitration Centre (HKIAC) established HKIAC is totally independent and free from governmental interference. Among the leading institutions globally, and in the top two in Asia; perhaps to paraphrase Brian Clough I wouldn't say HKIAC is the best centre in Asia. But it is in the top one! HKG hosts CIETAC, Hong Kong; the Permanent Court of Arbitration ("PCA") conducts of references in Hong Kong, including state-investor arbitration; the International Court of Arbitration of the International Chamber of Commerce ("ICC") opened a branch of its Secretariat in Hong Kong in November 2008 to serve ICC arbitration in the Asia-Pacific Region. 8
9 HKG s open skies policy to arbitrators and counsel Arbitrators and counsel can serve on references with little formality Work permits are readily available Foreign counsel do not require local co-counsel or to register with the legal profession s regulators 9
10 Wealth of experts in HKG, both forensic and specialty Concentration of forensic experts to help manage documents and number crunching Experts on virtually every specialty area can be found: construction, engineering, etc. 10
11 HKG s logistics advantage Proximity to the Chinese mainland Regional hub for legal services and dispute resolution underpinned by a trusted common law system and an independent judiciary Within a five-hour flight from half the world's population Hong Kong is home to more than 850 local law firms and more than 70 global law firms. Legal advisors based in Hong Kong are familiar with the legal and regulatory landscape of different countries around the world and can play a pivotal role in Belt and Road development Excellent hotels, restaurants and 11
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