Determining the applicable law to the arbitration agreement in the absence of a choice of law clause under Hong Kong Law: a call for renewed internationalism

Abstract

The courts of Hong Kong have determined the governing law of the underlying contract to indicate an express, implied and no choice of the law applicable to the arbitration agreement. In determining the applicable law, the courts made no references to the New York Convention despite the fact that the provisions under Hong Kong arbitration law pursuant to which the foregoing determinations were made are based on provisions in the New York Convention and ought to be applied in conformity with the same. This article argues that the courts of Hong Kong ought to adopt the New York Convention’s conflict of laws rules in Article V(1)(a) to determine the governing law of arbitration agreements in pre- and post-award proceedings in order to enhance the alignment of Hong Kong law with the international body of arbitration law.