Groundbreaking Mainland-Hong Kong Arrangement: Availability of Interim Measures in Mainland China for Hong Kong Seated Arbitrations

 

Background

The Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (the “Arrangement”) signed on 2 April 2019, came into effect in October 2019.

Prior to the Arrangement, the Mainland Chinese courts were not empowered to grant interim measures in aid of Hong Kong seated arbitrations.  In other words, interim measures from the Mainland Chinese courts were only available for arbitrations seated in Mainland China.  That position has now changed with the Arrangement coming into force.

The Arrangement

Under the Arrangement, any party to arbitral proceedings seated in Hong Kong and administered by a qualified arbitral institution may, prior to the issuance of the arbitral award, apply to the relevant Mainland Chinese courts for interim measures in relation to the arbitral proceedings in accordance with the relevant laws and regulations of Mainland China.

Parties to an arbitration may apply to the relevant Mainland Chinese court for interim measures if the following requirements are fulfilled:

• Applications for interim measures are made to the relevant Mainland Chinese court on or after 1 October 2019;
• The arbitration is seated in Hong Kong; and
• The arbitration is administered by one of the following prescribed list of institutions (“Qualified Arbitral Institution”):
• Hong Kong International Arbitration Centre (HKIAC);
• China International Economic and Trade Arbitration Commission Hong Kong Arbitration Center (CIETAC HK);
• International Court of Arbitration of the International Chamber of Commerce – Asia Office (ICC);
• Hong Kong Maritime Arbitration Group;
• South China International Arbitration Center (HK); and
• eBRAM International Online Dispute Resolution Centre.

What Interim Measures are Available from Mainland Chinese Courts?

Interim measures available from Mainland Chinese courts include:

• Property preservation;
• Evidence preservation; and
• Conduct preservation.

Procedure and Timeframe

Under the Arrangement, applications for interim measures may be made before or after the commencement of an arbitration.

If an application for interim measures is made before commencement of arbitral proceedings, the applicant party may apply for interim measures directly to the relevant Mainland Chinese court. If made after commencement of arbitral proceedings, the applicant party should submit its application to the Qualified Arbitral Institution administering its arbitration for forwarding to the relevant Mainland Chinese court.

Conclusion

The Arrangement enhances Hong Kong’s position as a leading jurisdiction for international arbitration involving Chinese and non-Chinese parties. It effectively ensures that parties to arbitrations seated in Hong Kong, and administered by a Qualified Arbitral Institution, can obtain interim measures from both the Hong Kong and Mainland Chinese courts.

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This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Denis Brock, an O'Melveny partner admitted to practice law in Hong Kong (Solicitor-Advocate), England & Wales (Solicitor-Advocate), Ireland, Australia, New Zealand and New York, Kieran Humphrey, an O'Melveny Counsel admitted to practice law in Hong Kong, England & Wales, and Australia, and Aditya Kurian, an O’Melveny associate admitted to practice law in India and Hong Kong, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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