Professional Conduct of Arbitrators: Core Requirements of the HKIAC Code of Ethical Conduct for Arbitrators

In early 2025, the Hong Kong International Arbitration Centre (HKIAC) revised its Code of Ethical Conduct for Arbitrators, introducing stricter disclosure obligations and a new presumption of impartiality in multi-party appointments. This update responds directly to a 2024 survey by the HKIAC Users’ Council, which found that 73% of corporate counsel now rank arbitrator ethics as their primary concern when selecting a seat for arbitration. For commercial parties, HR professionals managing cross-border employment disputes, and family mediators handling financial settlements, the rules governing an arbitrator’s conduct are no longer a procedural afterthought. They determine whether an award can be enforced, whether a challenge for bias will succeed, and whether the process itself is perceived as fair. This article sets out the core requirements of the HKIAC Code, how they interact with the Arbitration Ordinance (Cap. 609), and what parties should look for when assessing an arbitrator’s fitness to serve.

The Legal Framework: Cap. 609 and the HKIAC Code

Statutory Duties Under the Arbitration Ordinance

The Arbitration Ordinance (Cap. 609) provides the statutory foundation for arbitrator conduct in Hong Kong. Section 46 imposes an overarching duty on the arbitral tribunal to act fairly and impartially as between the parties, giving each a reasonable opportunity to present their case. This duty is not delegable. Section 47 requires the tribunal to adopt procedures suitable to the circumstances of the case, avoiding unnecessary delay or expense.

The HKIAC Code operates as a contractual standard. Every arbitrator appointed under the HKIAC Rules, whether administered or ad hoc, must confirm in writing their acceptance of the Code. The HKIAC Secretariat will not proceed with an appointment unless this confirmation is received. Failure to comply can result in removal by the HKIAC Appointing Authority under Article 14 of the HKIAC Rules, or a challenge under Section 26 of Cap. 609.

Scope of the Code: Who Is Bound and When

The Code applies to all arbitrators in HKIAC arbitrations, including co-arbitrators, sole arbitrators, and presiding arbitrators. It applies from the moment of appointment through to the final award. The Code also covers emergency arbitrators appointed under the HKIAC Emergency Arbitrator Procedures.

The Code distinguishes between two categories of obligation: mandatory requirements and best-practice guidelines. Mandatory requirements include impartiality, independence, and confidentiality. Best-practice guidelines cover time management, communication with parties, and fee transparency. Breach of a mandatory requirement is grounds for challenge. Breach of a guideline may not automatically disqualify an arbitrator but may be considered by the HKIAC Appointing Authority when assessing a removal application.

Core Requirement 1: Independence and Impartiality

The Duty to Disclose

The Code requires arbitrators to be and remain impartial and independent. This is the single most important obligation. An arbitrator must disclose any circumstances that may give rise to justifiable doubts as to their impartiality or independence. The standard is objective: would a reasonable third party, aware of the relevant facts, conclude that the arbitrator might be biased?

Disclosure must be made in writing before appointment. If new circumstances arise during the arbitration, the arbitrator must disclose them immediately. The HKIAC publishes a model disclosure form, which includes categories such as past or present business relationships with a party or its counsel, financial interests in the dispute, and prior professional engagements with the subject matter.

The 2025 revision added a specific requirement to disclose any prior appointments by the same party or law firm within the preceding five years. This addresses the concern raised in the 2024 Users’ Council survey about “repeat appointments” creating an appearance of dependency.

The IBA Guidelines as a Benchmark

While the HKIAC Code does not incorporate the IBA Guidelines on Conflicts of Interest in International Arbitration by reference, the HKIAC Appointing Authority routinely refers to them when assessing disclosure adequacy. The IBA Guidelines divide situations into three lists: the Red List (non-waivable and waivable), the Orange List (disclosable), and the Green List (no disclosure required).

In practice, HKIAC expects arbitrators to apply the Orange List standard. Any circumstance falling within the Orange List must be disclosed. Failure to disclose an Orange List item, even if the arbitrator believes they can remain impartial, creates a risk of challenge. The Hong Kong Court of First Instance, in Gao Haiyan v. Keeneye Holdings Ltd [2012] 1 HKLRD 627, confirmed that the test for apparent bias is whether a fair-minded and informed observer would conclude there was a real possibility of bias. The HKIAC Code aligns with this standard.

Practical Steps for Parties

When selecting an arbitrator, parties should request a copy of the arbitrator’s disclosure statement. If the statement is vague or incomplete, the party can ask the HKIAC Secretariat to request further details. A party that does not object to a known conflict within 30 days of disclosure may be deemed to have waived the right to challenge, under Section 27 of Cap. 609.

Core Requirement 2: Confidentiality and Privacy

The Scope of Confidentiality

The HKIAC Code requires arbitrators to treat all matters relating to the arbitration as confidential. This includes the existence of the arbitration, the pleadings, the evidence, the hearings, and the award. The duty survives the termination of the arbitration.

There are limited exceptions. An arbitrator may disclose confidential information if required by law, to enforce or challenge an award, or to protect their own legal rights in relation to a challenge to their appointment. The Code also permits disclosure to professional advisors on a need-to-know basis, provided the advisor is bound by equivalent confidentiality obligations.

Interaction with the Ordinance

Section 18 of Cap. 609 provides that unless the parties agree otherwise, an arbitration is confidential. The HKIAC Rules, specifically Article 45, reinforce this. The Code extends the confidentiality obligation to the arbitrator personally. Breach of confidentiality by an arbitrator can lead to removal and may expose the arbitrator to a claim for damages if the breach causes financial loss.

Practical Implications for HR and Commercial Users

For HR professionals handling employment disputes, confidentiality is often the primary reason for choosing arbitration over court litigation. The Code ensures that sensitive information about employee performance, compensation, or misconduct does not become public. Commercial parties should confirm in the terms of reference or procedural order that the confidentiality obligations under the Code apply to all participants, including witnesses and experts.

Core Requirement 3: Diligence, Competence, and Efficiency

Time Management and Procedural Control

The Code imposes a duty of diligence. Arbitrators must devote sufficient time to the arbitration, act without delay, and ensure the proceedings are conducted efficiently. This includes setting a realistic timetable, managing hearing schedules, and delivering the award within the time frame agreed by the parties or set by the HKIAC.

Under Article 32 of the HKIAC Rules, the tribunal must render the final award within three months of the last submission. The Code reinforces this by requiring arbitrators to confirm their availability before appointment. An arbitrator who accepts an appointment knowing they have insufficient time may be in breach of the Code.

Competence and Continuing Education

The Code does not prescribe specific qualifications, but it requires arbitrators to have the competence necessary to conduct the arbitration. This includes familiarity with the HKIAC Rules, the Arbitration Ordinance, and the procedural law of the seat. The HKIAC encourages arbitrators to undertake continuing professional development, though this is not a mandatory requirement.

The 2025 revision added a recommendation that arbitrators handling disputes under a specific governing law (e.g., Hong Kong law, English law, PRC law) should have demonstrable knowledge of that law. For parties, this means that an arbitrator’s CV and professional background should be scrutinised for relevant legal expertise.

Dealing with Delays and Non-Compliance

If an arbitrator fails to act with diligence, a party can apply to the HKIAC Appointing Authority for removal. The grounds under Article 14 of the HKIAC Rules include failure to perform the tribunal’s functions. The HKIAC Secretariat will typically give the arbitrator an opportunity to respond before making a decision. The Court of First Instance can also remove an arbitrator under Section 26 of Cap. 609 on the same grounds.

Core Requirement 4: Communication and Conduct

Ex Parte Communications

The Code prohibits ex parte communications between an arbitrator and a party without the other party’s knowledge and consent. This applies to substantive matters, procedural discussions, and any attempt to influence the arbitrator’s decision. The only exception is for purely administrative matters, such as confirming hearing dates or arranging document delivery, and even then, the other party must be copied.

Conduct at Hearings

Arbitrators must treat all parties, counsel, and witnesses with courtesy and respect. The Code does not give detailed rules on hearing conduct, but the HKIAC has published a separate Guide on Conduct for Arbitrators and Counsel, which sets out expectations for professional behaviour. Disruptive or abusive conduct by an arbitrator can be grounds for challenge.

Fee Transparency

The Code requires arbitrators to disclose their fee structure before appointment. This includes hourly rates, daily rates, and any additional charges for travel, accommodation, or administrative work. The HKIAC administers arbitrator fees under Schedule 2 of the HKIAC Rules, which sets out a scale based on the amount in dispute. Arbitrators must not charge fees that exceed the scale without party agreement.

Enforcement and Consequences of Breach

Challenge and Removal Procedures

A party can challenge an arbitrator for lack of independence, impartiality, or failure to perform the tribunal’s functions. The challenge must be made in writing to the HKIAC within 15 days of becoming aware of the grounds. The HKIAC Appointing Authority will decide the challenge, and its decision is final and binding.

If the challenge is upheld, the arbitrator is removed. If it is dismissed, the arbitration continues. The Court of First Instance can also remove an arbitrator under Section 26 of Cap. 609, but the court will generally defer to the HKIAC’s decision unless there is a serious procedural irregularity.

Impact on the Award

A breach of the Code does not automatically invalidate the award. However, a party can apply to the Court of First Instance to set aside the award under Section 81 of Cap. 609 on the ground of serious irregularity, which includes a failure by the tribunal to comply with its duties under Section 46. If the court finds that the arbitrator’s conduct was so flawed that the award is unsafe, it may set aside the award in whole or in part.

The Court of Final Appeal, in Pacific China Holdings Ltd v. Grand Pacific Holdings Ltd (2012) 15 HKCFAR 1, confirmed that the threshold for setting aside an award on grounds of bias is high. The party seeking to set aside must show that the arbitrator’s conduct caused real prejudice.

Actionable Takeaways

1. Request the arbitrator’s written confirmation of acceptance of the HKIAC Code of Ethical Conduct before the first procedural conference, and retain it in the case file. 2. Scrutinise the arbitrator’s disclosure statement for any Orange List items under the IBA Guidelines, and object in writing within 30 days if a conflict appears. 3. Include a clause in the terms of reference that expressly records the parties’ agreement on confidentiality, covering all participants and the award itself. 4. Monitor the arbitrator’s compliance with the three-month award timeline under Article 32 of the HKIAC Rules, and raise any delay with the HKIAC Secretariat promptly. 5. If a breach of the Code is suspected, file a written challenge with the HKIAC within 15 days of discovery, and do not wait until after the award is rendered.

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