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Bluebook 21st ed.

Vincent Connor & Mohammed Talib, Joinder, Intervention and Consolidation under the
HKIAC Administered Arbitration Rules 2013, 16 Asian Disp. Rev. 190 (2014).

ALWD 7th ed.

Vincent Connor & Mohammed Talib, Joinder, Intervention and Consolidation under the
HKIAC Administered Arbitration Rules 2013, 16 Asian Disp. Rev. 190 (2014).

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Connor, V., & Talib, M. (2014). Joinder, Intervention and Consolidation under the
HKIAC Administered Arbitration Rules 2013. Asian Dispute Review, 16(4), 190-195.

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Vincent Connor; Mohammed Talib, "Joinder, Intervention and Consolidation under the
HKIAC Administered Arbitration Rules 2013," Asian Dispute Review 16, no. 4 (October
2014): 190-195

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Vincent Connor & Mohammed Talib, "Joinder, Intervention and Consolidation under the
HKIAC Administered Arbitration Rules 2013" (2014) 16:4 Asian Disp Rev 190.

AGLC 4th ed.

Vincent Connor and Mohammed Talib, 'Joinder, Intervention and Consolidation under the
HKIAC Administered Arbitration Rules 2013' (2014) 16 Asian Dispute Review 190.

MLA 8th ed.

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the HKIAC Administered Arbitration Rules 2013." Asian Dispute Review, vol. 16, no. 4,
October 2014, p. 190-195. HeinOnline.

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Vincent Connor & Mohammed Talib, 'Joinder, Intervention and Consolidation under the
HKIAC Administered Arbitration Rules 2013' (2014) 16 Asian Disp Rev 190

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 COUNSEL FOCUS
Vincent Connor & Mohammed Talib 1
The HKIAC Administered Arbitration Rules
The Hong Kong International Arbitration Centre (HKIAC)
Administered Arbitration Rules (2013 Edn) (the 2013 Rules)
came into effect on 1 November 2013. The 2013 Rules
replace HKIAC's first ever administered arbitration rules
promulgated in 2008 (the 2008 Rules). They continue the
'light touch' approach adopted by the 2008 Rules, focusing
on addressing common practical difficulties in order to
improve the efficiency of arbitral proceedings and ensure
party autonomy in initiating and managing the arbitral
process.
Among the most significant developments are third-party
joinder and intervention under art 27 and consolidation under
art 28 of the 2013 Rules. These provisions reflect the growing
complexity of commercial disputes involving multiple parties
or contracts.
Articles 27 and 28 introduce significant innovations into the 2013
Rules. Parties considering their adoption should consider carefully
how they are likely to apply to their contractual circumstances.
Further clarification and guidance on these provisions, and in
particular how HKIAC and arbitral tribunals will approach them,
would assist parties adopting the 2013 Rules.
 COUNSEL FOCUS

Article 27: intervention and joinder under these Rules giving rise to the arbitration."This particular
Significant changes have been introduced by art 27 of the 2013 phrasing empowers HKIAC or the tribunal to permit joinder
Rules, which provides for both joinder and intervention. Joinder if - prima facie - the threshold condition is met. It is worth
occurs where an existing party seeks to join an additional party noting that the test under the art 6(4)(i) of the ICC Rules is very
to the proceedings. Intervention occurs where an additional similar, requiring the ICC Court to be prima fade satisfied that
3
party seeks to become party to ongoing proceedings. The an arbitration agreement under the rules that bind the existing
2013 Rules offer one of the broadest powers of joinder and and additional parties may exist. By contrast, art 4(2) of the Swiss
intervention when compared to other modem arbitral rules. Rules leaves it to the arbitral tribunal to decide upon the request,
taking into account all relevant circumstances.
Significantchanges in the 2013 Rules
Only joinder was permitted under the 2008 Rules. The 2013
Rules, adopting a broader approach, permit intervention as
well as joinder. This reflects art 4(2) of the Swiss Arbitration
Rules (2012 Edn) (Swiss Rules). By contrast, art 7 of the ICC
Rules of Arbitration (2012 Edn) (ICC Rules) continues only to
permit joinder.

The second change in the 2013 Rules is that they extend the
period during which an application for joinder or intervention
can be made. Under the 2008 Rules, a decision on joinder was
made by the arbitral tribunal, thus requiring the appointment
of the tribunal before any application could be made. Under
the 2013 Rules, if an application is made before the tribunal
has been appointed, then a prima facie decision on joinder
or intervention is made by HKIAC, with the final decision
reserved to the tribunal, once constituted. If the tribunal has
already been appointed, it will simply make the decision. In It is worth considering what facts will show whether an
this regard, the 2013 Rules have taken a similar approach "additional party is bound by an arbitration agreement under

to the ICC Rules, which permit the ICC Court to decide on
joinder before any arbitrator is appointed, but differ from art
4(2) of the Swiss Rules, which requires the tribunal to decide
such applications.
The threshold condition, which must be satisfied before any
request for joinder or intervention can be made, has also been
amended. The 2008 Rules required the written consent of both
the existing party and the additional party before any application
for joinder could be granted. By contrast, the 2013 Rules require
that the consent of the parties in entering into the agreement
to arbitrate be considered, and permit joinder if prima facie
"the additional party is bound by an arbitration agreement
these Rules." An express agreement will usually satisfy this
requirement. Such agreement may also, however, be inferred
from documents or from the parties' conduct. Relevant
factors may include common owners or a parent -subsidiary
relationship, common directors, references to the third party
in the contract (such as permitting performance by the third
party or a right to receive payment), the place of signing the
contract and the circumstances leading to the dispute.4
The final significant change relates to the effects of a successful
application for joinder or intervention. There was no provision
in the 2008 Rules prescribing any consequences. This remains
broadly similar under the 2013 Rules with regard to requests

/ 191
 COUNSEL FOCUS
for joinder granted after the confirmation of the tribunal. By
contrast, however, and to reflect the possibility that a decision
may be made by HKIAC to join an additional party prior
to the confirmation of the tribunal, the 2013 Rules make
detailed provision regarding the appointment of the tribunal,
including that HKIAC may revoke the appointment of any
arbitrator who has been designated or confirmed and appoint
all members of the tribunal in appropriate circumstances.
The 2013 Rules also specifically preserve the parties' power to
raise jurisdictional challenges, whether the initial prima facie
decision to order joinder was made by HKIAC or the tribunal.
Assessing the changes in the 2013 Rules on joinderand
intervention
The 2013 Rules take a broad approach to the question of
joinder and intervention. It appears that a deliberate decision
was taken to give HKIAC and the tribunal a wider discretion
when deciding any application for joinder or intervention,
whilst being highly prescriptive about the consequences of
a successful application. This ensures that cases are resolved
according to their merits and helps parties to understand their
rights and obligations under the 2013 Rules.
Both joinder and intervention under art 27 may raise issues of
confidentiality and party autonomy. These have to be carefully
balanced by both HKIAC and tribunals to ensure they render
enforceable awards grounded in demonstrably fair and just
outcomes.
Confidentiality
With regard to the confidentiality implications of joinder and
intervention, art 14 of the 2013 Rules contemplates that the
arbitration will generally be seated in Hong Kong, unless
agreed otherwise. Section 18 of the Arbitration Ordinance
(Cap 609) provides that, subject to certain exceptions and
unless agreed otherwise, no party may publish, disclose or
communicate any information relating to arbitral proceedings
under the arbitration agreement. This obligation of confidence,
including the relevant exceptions, is also repeated in art 42 of
the 2013 Rules. Article 42.1 expressly extends that obligation
to the arbitral tribunal and HKIAC.
An application for joinder under art 27.4 or 27.6 of the 2013
Rules anticipates, however, that any request for joinder will
contain details of the existing proceedings and "a reference to
the contract(s) or other legal instrument(s) out of or in relation
to which the request arises", a copy of which would be served
on the proposed additional party. Such a request discloses the
confidential arbitral proceedings to the additional party. In this
regard, the wording of art 18(1) of the Arbitration Ordinance
requires consideration. It provides:
"(1) Unless otherwise agreed by the parties, no party may
publish, disclose or communicate any information relating to -
(a) the arbitral proceedings under the arbitration
agreement; or
(b) an award made in those arbitral proceedings."
Importantly, both that provision and art 42 of the 2013 Rules
specify that the duty of confidentiality may be varied by party
agreement. This would arguably include the parties' agreement
to join an additional party under art 27; and indeed, the parties
having agreed to the application of the 2013 Rules may of itself
be sufficient agreement to waive confidentiality in the event
that one party serves a request for joinder.
It should also be noted that contracts and legal instruments
may be subject to confidentiality obligations that could be
breached by providing copies of same to additional parties.
On balance, if there is an underlying arbitration agreement,
it is likely that the additional party would itself be bound by
such contracts and legal instruments. The risk would lie with
the party making a request for joinder as to whether or not
confidentiality of such documents would arise.

The 2013 Rules do not deal expressly with the situation
where an additional party, having learned of the arbitration
proceedings, invokes its right of intervention on the basis of
information obtained in breach of confidentiality. Ultimately,
this is an issue for consideration not by HKIAC but, rather, a
matter for the tribunal.
Party autonomy
A second concern which might arise is that the right to
intervene may be thought to undermine the important
principle of party autonomy, especially where no party to the
proceedings supports the intervention of the third party. In
such circumstances, the decision remains vested with HKIAC
or the tribunal, which must contemplate the exercise of the
power (and its implications) if an application is made. In this
scenario, the parties would have agreed that there should be
no intervention, but HKIAC or the tribunal are not obliged
to give effect to it. This might lead to the parties expressly
challenging the tribunal's jurisdiction in such instances. Given,
however, that the joinder would take place only where it
appears prima facie that an arbitration agreement binding all
of the parties exists, then perhaps the more correct view is
that the procedure in fact respects party autonomy, in that it
provides a means for the additional party to participate in the
resolution of the issue referred to arbitration.
Good counsel dictates that, when entering into contractual
arrangements which consist of or incorporate arbitration
agreements, parties must think carefully about the extent
of any such agreement, and in particular whether any party
additional to the principal parties may, expressly or by
implication, be bound by the agreement on the basis of its
wording and the parties' inferred intention. This of course is
true also of any contractual arrangement and the resolution
of disputes arising from it, regardless of whether there exists a
joinder procedure.
Finally, any perceived prejudice to existing parties to a
reference (such as delay, additional cost or inconvenience)
that arises from a request for joinder may (but not necessarily
'must') be taken into consideration when considering an
COUNSEL FOCUS
application. Of course, this is a subordinate consideration
to the principal question of whether or not there exists an
arbitration agreement.
Article 28: consolidation
The 2008 Rules, based as they were on the UNCITRAL
Arbitration Rules (1976 Edn), did not contain express
provisions on consolidation. The 2013 Rules, by contrast,
empower HKIAC, at the request of a party and in consultation
with all parties and arbitrators, to consolidate two or more
arbitrations, generally into the proceedings that started first.
They also make extensive provision for the consequences of
a successful consolidation application. These provisions are
similar to those of art 10 of the ICC Rules and both differ from
art 4(1) of the Swiss Rules.
Under art 28.1 of the 2013 Rules, HKIAC may consolidate
proceedings if, on the application of an existing party to one of
the proceedings:
(1) the parties agree;
(2) all of the claims are made under the same arbitration
agreement; or
(3) if the claims are made under more than one arbitration
agreement, a common question of fact or law arises in
both or all of the arbitrations, the rights to relief claimed
are in respect of or arise out of the same transaction or
series of transactions, and HKIAC finds the agreements to
be compatible.
[2014] Asian Dispute Review 193
 COUNSEL FOCUS
Under art 28.3, in deciding whether to consolidate
proceedings, HKIAC must also take into account the
circumstances of the case. Relevant factors may include, but
are not limited to, whether there are common arbitrators as
between the proceedings.
Importantly, under art 28.8 the parties waive any objections,
based on HKIAC's decision to consolidate, to the validity and/
or enforcement of any award in the consolidated proceedings,
in so far as such waiver can validly be made.
Assessing the 2013 Rules on consolidation
The 2013 Rules take a broad approach to the question of
consolidation, giving HKIAC the flexibility and discretion
needed to assess individual applications for consolidation
properly, without unduly fettering its discretion.
Consolidation arises in three basic factual situations:
(1) where the parties are identical in all proceedings; (2)
where the parties are not identical but overlap in differing
proceedings; and (3) where the parties are not identical and
do not overlap. Insofar as the proceedings are consolidated
by the agreement of the parties, there can be little objection
to HKIAC relying on this ground to exercise its powers in all
of these scenarios.
The approach taken by art 28 in respect of the consolidation
of proceedings in the absence of agreement by all the parties
requires further consideration, however.
Foremost is the 'all or nothing' approach taken to ordering
consolidation: either HKIAC orders consolidation or it
does not. By contrast, s 6B(1) of the previous Arbitration
Ordinance (Cap 341) permitted the High Court to order two
or more sets of arbitration proceedings "to be heard at the
same time, or one immediately after another, or... any of
them to be stayed until after the determination of any other
of them." In common with the ICC Rules and the Swiss
Rules, this matter would now be dealt with under the 2013
Rules by the tribunal, having received submissions from the
parties.
The issues previously discussed in relation to knowledge and
confidentiality of arbitrations where joinder or intervention are
applied for under the 2013 Rules require also to be considered
in the context of consolidation.
Like the Swiss Rules, the 2013 Rules do not advocate a party-
centric approach to consolidation. This is not the same as the
equivalent provision in the ICC Rules, which authorises the
ICC Court to compel consolidation only when the proceedings
"are between the same parties, the disputes in the arbitrations
arise in connection with the same legal relationship..." HKIAC
has a much wider power to consolidate, even if the parties are
not identical, in different proceedings. It will be crucial for the
parties to understand how HKIAC will make such decisions
if it wants them to be comfortable with a broad compulsory
consolidation power.
In exercising its discretion, the only two listed factors that
HKIAC should consider are focused on the arbitrators
appointed in the proceedings. Article 10 of the ICC Rules also
stipulates only these two factors to be considered by the ICC
Court when deciding whether to consolidate. Other - clearly
relevant - factors, such as the progress of the proceedings (a
factor expressly mentioned by art 4(1) of the Swiss Rules), are
not referred to in the 2013 Rules. HKIAC must be seen to give
due weight to these factors, and the breadth of the discretion
which it is given in the 2013 Rules certainly allows for it to
do so.

Concluding views
The 2013 Rules represent a significant development in the
provision of administered arbitration services by HKIAC. They
have significantly increased the powers of the HKIAC and
the tribunal to order joinder, intervention and consolidation.
This illustrates the growing complexity of commercial disputes
involving multiple parties or contracts and the important
role that HKIAC and the tribunal have to play in steering the
parties during these stages of the proceedings.
The 2013 Rules attempt to deal with two perennial problems
of modern commercial arbitration. Whilst it is difficult to reach
a perfect solution to these problems, the introduction of such
comprehensive provisions by HKIAC to deal with multi-
party and/or multi-contract disputes is to be commended and
reflects HKIAC's excellent work in developing the 2013 Rules.
As with any new arbitration rules, perfecting these provisions
will be a work in progress. Many parties will welcome these
COUNSEL FOCUS
changes and will value the enhancement to the efficiency and
economy of the arbitration process they entail. Some parties may
be uncomfortable with the joinder and consolidation provisions
and so may wish to modify or even exclude the application of
arts 27 and 28 of the 2013 Rules. This is a perfectly acceptable
option for those who wish to take it, and can be practically
addressed when drafting the arbitration agreement. 7;
1 The authors are grateful to Mr Nicholas Brown (Partner, Pinsent
Masons) and Mr James Lewis (Solicitor Pinsent Masons) fortheir
and comments on drafts ofthis
valuable insights article
2 The fulltextsofthese provisions are lengthy and are not reproduced
here. The 2013 Rules can be found on the HKIAC website (http:ii
www.lhkiac.org/index.php/arbitrationlhkiac-administered-ar bitratiol-
rules-2013)
3 The Contracts (Rights of Third Parties) Bill
has rot yet been passed
intolaw inHong Kong atthe time ofwriting. As the doctrine of privity
still
prevailsinHong Kong, itisnot clear whether a third party could
enforce its
righttointervene as a matter ofdomestic law
4 Dow Cherri;a France et a/ v Isover Saint Gobain (I C Case No
4131 (1982)). See also W Park, 'Non-Signatories and International
ContractsAn Arbitrator's Dilemma', inPermanent Court of Arbitration
Arbitraton (2009,Oxford
(Ed), Wultiplo PartyActions in international
University Press), pp 3-10.
[2014] Asian Dispute Review 195