Submission to the Public Consultation on Proposed Amendments to the 2013 HKIAC Administered Arbitration Rules

Abstract

International commercial arbitration is renowned for its flexible procedure. But what if arbitrators could resolve disputes by simply asking themselves, 'who should win?' Would this be a fair way to resolve international commercial disputes? And would this be consistent with the commercial imperatives of parties who choose international commercial arbitration as a tool for managing their business risk?

This paper is a submission to the public consultation on proposed amendments to the 2013 HKIAC Administered Arbitration Rules, initially opened on 29 August 2017. It recommends amendment of the conflict of laws methodology contained in the proposed Art. 36(1) HKIAC Rules, to incorporate a closest connection test - and in doing so, addresses themes arising from the questions posed immediately above. It argues that adoption of the closest connection test in HKIAC arbitration would be consistent with key principles reflected in the HKIAC Rules 2013, and would also be in the interests of the users of HKIAC arbitration.