9. Language of arbitration

9. Language of arbitration

The arbitration agreement should expressly specify the language or languages to be used in the proceedings. While the parties have total freedom to choose, failing to do so requires the arbitral tribunal to determine the language, which can lead to significant impasses and additional costs if the arbitrators and parties speak different languages. Under section 50 of the Arbitration Ordinance (Cap. 609), if the parties do not agree on the language to be used in the arbitral proceedings, the tribunal has the power to determine the language. The tribunal may also order that any documentary evidence be accompanied by a translation. 

If the parties feel strongly about the language of the arbitration, they should make express provision in the arbitration agreement. If they fail to agree, the tribunal will decide the language of the proceedings.  

When the tribunal is called upon to determine the language, it must look at all relevant factors to ensure a fair and cost-effective process. These include: 

1. Whether the parties utilized a specific language in their business transactions. 
2. The linguistic abilities of the available pool of arbitrators. 
3. The need to minimize the overall costs of translating documents and providing interpreters for oral evidence. 
4. The convenience of the parties, though this factor carries comparatively little weight. 

The specified language applies to all written statements, oral hearings, and any awards or communications issued by the tribunal. However, the tribunal or the parties’ agreement may specify that certain elements of the proceedings are conducted in a different language. 

Specifying a language does not prevent witnesses from testifying in their mother tongue, but the agreement may stipulate that the party relying on such evidence must provide a certified translation into the official language of the arbitration.