Arbitration is a widely used alternative for resolving disputes between two or more parties. This method of dispute resolution is unique to methods like litigation because it takes place outside of the courthouse with an impartial decision maker known as the arbitrator. On July 1997, Hong Kong was handed back to the Chinese after over 150years of British sovereignty. However, there has always been an issue concerning the jurisdiction of Hong Kong since both Hong Kong and Mainland China have different systems under the “one country, two systems” principle proposed by Deng Xiaoping. In this research, I will focus on the difference between the system of arbitration in Hong Kong and Mainland China because of the “one country, two systems” principle established in the country.
In this research, various legislations, case laws and enforcements regarding international cases are examined. In addition, Journals and articles that have previously addressed the issue are examined. It is hypothesized that there needs to be improvement in the legal system of Hong Kong and Mainland China for an improved environment for arbitration in China. Examples of primary sources that will be relevant to this research include the Bottling Companies vs. Pepsi Cola Pan-Americans case law. This case is of significance to this research because it highlights the relationship between domestic and international contracts and the consequence of the “one country, two systems” principle with relation to this consequence. Another similar case that will be useful to this research is the case of the International Court of Arbitration 13009, which settled a sales dispute between a Liechtenstein seller and a Spanish buyer. This case is significant because it will provide an insight on the arbitral award.
Moreover, articles and journals will be used to provide theoretical information that will supplement the empirical information obtained from the primary sources. For instance, a journal by Broardhurst, which highlights the impact that law enforcement and social change has had on triad societies in Hong Kong, will be important to this research. This is because these changes are also related to the changes that are manipulating the legal mechanics governing the arbitration laws in both Mainland China and Hong Kong. Furthermore, journals by Morgan and Shen concerning the enforcement of the Chinese arbitral awards will also be relevant to this research. The statistical and theoretical information in these three journals are vital in building concepts and ideas that support my argument.
To investigate the impact of the “one country, two systems” principle on the difference between arbitration laws in Hong Kong and Mainland China
- To determine the difference between recognition and enforcement of the arbitration award between Hong Kong and Mainland China
- To asses the impact of the difference in recognition and enforcement of the arbitration award between Hong Kong and Mainland China
- To determine whether improvements need to be made to the current legal environment for arbitration
This research is important because it intends to answer the important questions involving the “one country, two systems” principle that was established in China after Hong Kong was released to China in 1997. The main areas of research include the People’s Republic of China Arbitration law of 1995, the relationship between the UNCITRAL and the New York convention of 1958 and the Chapter 609 of the Arbitration Ordinance of 2011. The People’s Republic of China Arbitration law of 1995 is composed of eight chapters which will be the centre of our concern. This piece of legislation governs the arbitrary laws of the mainland China. Prior to the 1997 handover of Hong Kong to China, it was part of the New York Convention as a territory of the United Kingdom. However, after the agreement, the United Kingdom and the Mainland China agreed that they would honor this convention. The problem arises because of the international treaty which doesn’t allow this legislation to be applicable in the mainland China. This was affirmed by the mainland judges when they declined to honor the ten Hong Kong awards. Therefore, this research will attempt to analyze this situation and come up with solutions in form of suggestions.
This research is classified as a quantitative and a descriptive research proposal. It is a descriptive research because it aims to provide a description of what the impact of the “one country, two systems” principle is on the difference between arbitration laws in Hong Kong and Mainland China. On the other hand, it is qualitative because it aims to describe the laws and characteristics between the two different legislations in the republic of China. Therefore, qualitative technique models are more applicable in this research compared to other conventional models. The information gathering techniques in this model includes; direct observation, internet based surveys, questionnaires and open-ended interviews as well as in-depth interviews.
The expected results from this research proposal are numerous. For instance, it is expected that there exists differences between the arbitrary laws in the main land china and Hong Kong. The Impacts of these differences are expected to be numerous and very pronounced regarding the jurisdiction of Hong Kong. This research is expected to cast light on the advantages and disadvantages of using arbitration as opposed to litigation.
Moser, Michael J and Cheng, Teresa. Hong Kong arbitration: A user’s guide. Hong Kong: CCH Hong Kong. 2008.