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Wayne Wang
Zhong Lun Law Firm, Guangzhou
waynewang@zhonglun.com

Chen Jie
Zhong Lun Law Firm, Guangzhou
chenjie@zhonglun.com

Cindy Wang
Zhong Lun Law Firm, Guangzhou
CindyWang@zhonglun.com

Xia Jun
Zhong Lun Law Firm, Guangzhou
xiajun@zhonglun.com

 

Hong Kong has long been known as a leading international arbitration hub. The unique geopolitical position of Hong Kong makes it a popular choice of dispute resolution forum for cases with a Chinese element. However, it is always a headache for the parties when it comes to seeking interim measures in mainland China prior to or during Hong Kong-seated arbitral proceedings. The dilemma is that mainland Chinese courts had no power to grant interim measures in support of foreign-seated arbitrations (except for maritime arbitrations), and interim measures obtained from the arbitral tribunal in the foreign-seated arbitration (except for maritime arbitrations) are not enforceable by the mainland courts.

This situation has fundamentally changed after the signing of the Arrangement Concerning Mutual Assistance in Aid of Arbitral Proceedings by the Court of the Mainland and of the Hong Kong Special Administrative Region (the 'Arrangement') between the government of the Hong Kong Special Administrative Region (HK SAR) and the Supreme Court of the People’s Republic of China on 2 April last year. On 26 September last year, the Supreme Court issued the Interpretations and Application to the Arrangement (the 'Interpretations') providing further guidance on implementation of the Arrangement.

The Arrangement came into effect on 1 October last year and can retroactively apply to pending arbitral proceedings that have commenced before that date.

Scope of application

The Arrangement may apply to the arbitral proceedings in Hong Kong administered by arbitration institutions that are Hong Kong-based or have a permanent office in Hong Kong (collectively, the designated arbitration institutions), a designated list of which has been jointly released by the Supreme Court and the Department of Justice of the HK SAR. The designated list includes:

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

The Arrangement does not extend to ad hoc arbitrations or arbitral proceedings administered by arbitration institutions not included in the designated list, even if the arbitration is seated in Hong Kong.

Type of interim measures

The types of interim measures available from the mainland courts include:

• property preservation;
• evidence preservation; and
• conduct preservation.

The aforementioned encompass all the preservation measures provided under the PRC Arbitration Law and the PRC Civil Procedural Law in a bid to grant equal treatments to the parties in the arbitral proceedings in Hong Kong.

Mainland courts with jurisdiction

Any party seeking interim measures under the Arrangement may apply to the intermediate people’s court of mainland China:

• at the place where the respondent is domiciled or the place where the property or evidence is situated; and
• having jurisdiction over foreign-related cases.

Mainland China implements a system of centralised supervision over foreign-related cases. Intermediate people’s courts at the level of provincial capital cities, centrally administered municipalities, or other major cities as designated by the Supreme Court can hear foreign related cases under their respective jurisdictions.

If the place where the respondent is domiciled and the place where property or evidence is situated fall under the jurisdiction of different people's courts, the party shall make an application to any one of those courts and shall not make applications to two or more courts separately.

Application steps

Before the arbitration proceedings commence, the party shall file the application to the competent mainland court directly. If, within 30 days after interim measures have been taken, the court has not received a letter from the designated arbitration institution certifying its acceptance of the arbitration case, the court shall discharge the interim measures.

After the arbitration proceedings commence and before an arbitral award is issued, the party shall file the application to the designated arbitration institution, which will pass it to the competent mainland court.

Given the time-sensitive nature of applications for interim measures, the Interpretations allow the applicant to submit its application together with the acceptance proof of the designated arbitration institution to the mainland court by itself.

Application documents

The application documents to be submitted to the competent mainland courts include:

• an application letter for interim measures;
• the arbitration agreement or the agreement containing an arbitration clause;
• proof of identification;
• in the case of application during the arbitral proceedings, arbitration submission and supporting evidence, as well as a letter from the designated arbitration institution certifying its acceptance of the arbitration case; and
• other documents as required by the mainland courts.

Note that the proof of identification issued outside mainland China shall be notarised and legalised in its originating country or region and accompanied with a Chinese translation.

Court review

The Arrangement provides that the mainland courts shall review the applications as soon as possible and may require the applicant to provide security. The Arrangement is silent on the time limit for review by the mainland courts. The interpretations further specify such time limit by referring to the applicable laws and regulations of mainland China, which provide as follows:

• for any application submitted prior to the commencement of any arbitral proceedings, the mainland court shall make a ruling within 48 hours after accepting the case;
• for any application submitted during the arbitral proceedings, the mainland court shall make a ruling within five days after accepting the case, or receiving the security from the applicant, whichever is later;
• for any emergency case, the ruling shall be made within 48 hours; and
• if the applicant is not satisfied with the ruling, it could apply to the ruling court for reconsideration once. Enforcement of such ruling shall not be suspended during the period of reconsideration.

On 8 October 2019, the Shanghai Maritime Court accepted the application of a party to Hong Kong-seated arbitral proceedings for asset preservation. It is the first case handled in accordance with the Arrangement since its promulgation.

The Arrangement represents a huge step forward for the judicial assistance between mainland China and Hong Kong. It is also the first bilateral arrangement on interim measures in arbitral proceedings entered into by mainland China. The Arrangement enhances the attractiveness of Hong Kong as the leading international arbitration hub.

Going forward, for the parties that want to preserve the ability to seek interim measures from the mainland courts, it is advisable to refer all the disputes to a Hong Kong-seated arbitration administered by a designated arbitration institution under the Arrangement.