Non-Resident Employment Visa Requirement for Arbitral Proceedings in Hong Kong Lifted in New Scheme

In a continuing series of initiatives to significantly enhance Hong Kong’s role as a global international centre for legal and dispute resolution services, the HKSAR Government, on 29^th June 2020, announced the launching of a two-year pilot scheme to allow those non-Hong Kong residents participating in arbitration proceedings in Hong Kong to do so as visitors and without the need for obtaining employment visas ("Scheme")ⁱ. Arbitral proceedings include, for example, attendance at hearings, case management conferences, client meetings for preparation, and interviews of experts or witnesses within Hong Kong etc.

To be eligible for the Scheme, a small number of criteria must be met by the individual:

1. In respect of the individual, the basic requirement is that the person must be able to visit Hong Kong visa-free. Currently Hong Kong allows nationals of about 170 countries and territories to visit Hong Kong visa-free for periods ranging from 7 to 180 days, depending on nationalityⁱⁱ.  Those eligible under the Scheme will be able to stay in Hong Kong to participate in arbitral proceedings for the duration of the visa-free period for their relevant nationality as-granted upon arrival.
2. The individual must then also be one of four categories of participant in arbitral proceedings being (i) arbitrators; (ii) expert/factual witnesses; (iii) counsel in the arbitration; and (iv) parties to the arbitration.
3. Finally, those satisfying the requirements above, must then obtain a letter of proof ("Letter") from a qualified institution for presentation upon arrival at Hong Kong's immigration inspection points stating that they are eligible to participate in arbitral proceedings in Hong Kong.

It should be noted that:

1. the Scheme does not cover residents of Mainland China, Macau or Taiwan, or those individuals who require a visa/entry permit to enter Hong Kong; and
2. the letter of proof does not guarantee entry into Hong Kong, nor does it allow non-visitor activities to be conducted outside the Scheme parameters for which a visa should be obtained in the usual way, if such activities are to be undertaken.

The Letter must be obtained from one of those qualified arbitral and dispute resolution institutions and permanent offices in Hong Kong which satisfies the criteria set out under Article 2(1) of the "Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the HKSAR"ⁱⁱⁱ currently (at the date of publication) being:

• Hong Kong International Arbitration Centre (HKIAC)
• China International Economic and Trade Arbitration Commission Hong Kong Arbitration Center (CIETACHK)
• International Court of Arbitration of the International Chamber of Commerce – Asia Office (ICC)
• Hong Kong Maritime Arbitration Group
• South China International Arbitration Center (HK)
• eBRAM International Online Dispute Resolution Centre

 For those ad-hoc arbitrations not governed by an arbitral institution, but which are held in "reputable venue(s) with established and well-equipped hearing facilities (namely, the Hong Kong International Arbitration Centre and the DoJ)", then the letter must be obtained from such venues.

The following information (with documentary support) is likely to be required by the qualified arbitral institution in order for them to issue any Letter:

• the personal particulars of the applicant for the Letter and their role in the arbitration
• estimated arrival and departure date to and from Hong Kong;
• the scope of the arbitral proceedings for which entry under the Scheme is required, for example, case management conference and where and when and for how long activity is intended to take place;

The HKSAR Government has said it will review the scheme at the end of the two-year pilot period, and notes that any person covered by the Scheme is still subject to the current COVID-19 restrictions for the time being, under which: (i) non-Hong Kong residents coming from overseas countries and regions by plane will be denied entry to Hong Kong for the time being; and (ii) non-Hong Kong residents coming from the Mainland, Macao and Taiwan will be denied entry to Hong Kong if they have been to any overseas countries and regions in the past 14 days.

If you wish to discuss this article, the Scheme, or any arbitration issues in Hong Kong, please contact Jon Howes or Chris Short in our Projects and Construction Team.

ⁱ https://www.info.gov.hk/gia/general/202006/29/P2020062900772.htm

ⁱⁱ https://www.immd.gov.hk/eng/services/visas/visit-transit/visit-visa-entry-permit.html.

ⁱⁱⁱ https://www.doj.gov.hk/pdf/2019/list_of_institutions_e.pdf