37 38 20 An arbitral tribunal may award any remedy or relief that could have

37 38 20 an arbitral tribunal may award any remedy or

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37 38
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20 An arbitral tribunal may award any remedy or relief that could have been ordered by the Court in civil proceedings (s 70). An award ‘is enforceable in the same manner as a judgment of the Court that has the same effect, but only with the leave of the Court’ (s 84). Legitimate grounds for not enforcing arbitral awards are limited : A party may apply to the CFI to challenge an award on grounds of “ serious irregularities ” (s.4(2), Sch 2); but the Court cannot set aside the award merely because it contains errors of law or fact on its face. The Court’s appellate jurisdiction may be invoked only in case the parties have unanimously consented to it, or where permission to appeal has been granted by the Court. An appeal will not be heard unless the Court is satisfied that the arbitral award ‘will substantially affect the rights of one or more of the parties … [and that] the question is one which the arbitral tribunal was asked to decide … [and that] ‘the decision of the arbitral tribunal on the question is obviously wrong or the question is one of general importance and the decision of the arbitral tribunal is at least open to serious doubt .’ (s 6(4), Sch 2) 39 40
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21 Arbitral Institutions The Hong Kong International Arbitration Centre (HKIAC) Founded in 1985 as a non-profit company limited by guarantee and enjoys charitable status. Under the Arbitration Ordinance, the HKIAC has statutory power to appoint arbitrators in case the parties have failed to agree a mechanism for making such appointments. Other prominent arbitration institutions: The Chartered Institute of Arbitrators The International Court of Arbitration The China International Economic and Trade Arbitration Commission (CIETAC) Mediation 41 42
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22 Mediation (‘conciliation’): Mediation may be described as assisted negotiation . It involves procedures whereby an independent, impartial person assists the parties to reach an agreed settlement of their dispute. Impartial mediator. Does not determine rights or wrongs of the parties. Parties control the mediation process and outcome. Informal , consensual , and confidential . Lawyers generally play a minimal role in mediation . Opposed to adversarial legalism and zero-sum ‘win/lose’ mentality. The Mediation Ordinance (Cap.620) came into effect on 1 January 2013. s.4(1): “[M]ediation is a structured process comprising one or more sessions in which one or more impartial individuals , without adjudicating a dispute or any aspect of it, assist the parties to the dispute to do any or all of the following— (a) identify the issues in dispute; (b) explore and generate options ; (c) communicate with one another; (d) reach an agreement regarding the resolution of the whole, or part, of the dispute.” 43 44
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23 The Mediation Ordinance bans disclosure of mediation communications , except when the parties consent to disclosure, or a court permits it (s 8).
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