An arbitration case ‘win’ can be just part of a long legal journey when it comes to Belt and Road

Winning an arbitration is a major milestone in the dispute resolution process for a company, but enforcing the award – especially against a state entity in the host nations covered by the Belt and Road Initiative – is often where the bigger challenge lies. 

“Enforcement varies from state to state, but in general it has improved in Asia,” said James Kwan, a Hong Kong-based international arbitration partner at international law firm Hogan Lovells. “Judges are getting more sophisticated with training and through collaboration.” 

Hong Kong, Singapore, Malaysia, South Korea, and Japan are considered to be “generally pro-enforcement”, while the Philippines, India and Indonesia rank lower down but much improved, he added. 

“China has really improved in the last 10 years – public policy hasn’t been used as ground for refusal of enforcement – except in three cases,” he said.

A good track record of enforcing Hong Kong arbitral awards on the mainland has made Hong Kong an attractive place for resolving disputes involving nations covered by the initiative, he said, noting since 2009, only two Hong Kong International Arbitration Centre awards have been refused enforcement on the mainland.

In one case, it was ruled that the disputed issue should have been referred to the Chinese court rather than an arbitral tribunal, while in the other, the award was deemed to have contained “decisions on matters beyond the scope of the submission to arbitration”.