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Arrangement on interim measures takes off in China

  • Legal Development 19 December 2019 19 December 2019
  • Asia Pacific

  • Belt & Road

Following the launch of China's International Commercial Courts, the authorities in China are taking steps to support international arbitration too - even when it is administered by foreign arbitral institutions. Notes have just been published by two institutions guiding parties and their lawyers through new procedures.

Arrangement on interim measures takes off in China

In April 2019 the government of Hong Kong and the PRC's Supreme People's Court (SPC) announced an arrangement allowing parties to arbitrations seated in the island to apply for interim measures from courts in mainland China. Significantly, the arrangement extends not only to arbitrations administered by the Hong Kong International Arbitration Centre (HKIAC), but to those handled by other institutions too. A list of qualifying institutions was published a few months later, and the arrangement went live on 1 October. Among the listed institutions are the International Court of Arbitration (ICC) - the only arbitration institution on the list that is based in the West.

Now the HKIAC and ICC have published helpful guidance notes explaining how parties can take advantage of the new arrangement, and also what rules the institutions themselves apply. These are slightly different, for example where the time limits for taking certain procedural steps are concerned. So the notes should be studied carefully, depending on which institution is used. They also link to important source materials, including template documents produced by the SPC and commentary that it published in September, just before the arrangement came into force.

The main point made by these notes is that the arrangement is flexible, allowing parties to obtain interim measures from mainland courts, for example, even before arbitration has been filed. The arrangement is also broad in scope, covering interim measures protecting evidence as well as property, and certain other forms of relief. However, it does have limits.  As one would expect, it does not apply to arbitration completed before 1 October 2019, and investor-state arbitrations are excluded altogether. 

It seems that the arrangement will be widely used. HKIAC says that it has received eleven applications under the arrangement, of which at least four have succeeded already. One of the eleven applications concerned the preservation of evidence rather than assets, and none requested other relief. However, it is early days yet, and no doubt further applications requesting a broader range of relief will be made in due course.

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