Xin MA
The Supreme People’s Court of the People’s Republic of China (SPC) and the government of Hong Kong Special Administration Region (HKSAR) signedthe 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 Administration Region (hereinafter Arrangement) on April 2, 2019. This Arrangement came into force on October 1, 2019 both in Mainland China and in the HKSAR. The SPC promulgated it in the form of Judicial Interpretation,[1] according it national mandatory force.[2] This Arrangement for the first time allows the People’s court to order interim measures in aid of commercial arbitral proceedings[3] outside Mainland China,[4] though limited to those seated in Hong Kong.
Up to now, the SPC and the HKSAR have already signed six arrangements[5] in relation to mutual judicial assistance in civil and commercial matters. In addition to this Arrangement, the SPC intends to strengthen Hong Kong as a unique seat for Sino-related alternative dispute resolution in the Asia-Pacific area. This short article tries to clarify several implications of this Arrangement for foreign parties, in the context of negotiating and drafting arbitration clauses with a Sino party, and in the context of seeking court-ordered interim measures in a People’s court against a Sino party.
What Interim Measures Can Be Ordered by A People’s Court?
While the HKSAR is a common law jurisdiction and has adopted the Model Law, Mainland China is a civil law jurisdiction and its arbitration law does not resemble the Model Law. Thus, “Interim Measure” as defined in the Model Law, does not exactly correspond to its Mainland China counterpart.
Article 1 of this Arrangement defines Interim Measure in Mainland China as “property preservation, evidence preservation, and conduct preservation.”[6] If because of one party’s conduct, or for other reasons, enforcing an arbitral award becomes difficult, or any other damage may be caused to the applicant, the applicant may apply for the preservation of that party’s property, or for an order compelling that party to perform certain conduct or abstain from certain conduct.[7] If there is a likelihood that evidence may be destroyed, or lost, or difficult to obtain later, the applicant may apply for the preservation of evidence.[8] Parties can apply for such interim measures before or after the relevant arbitral institution or permanent office has accepted the arbitration case.[9] However, applications before the start of the arbitral proceedings face stricter judicial review in regard to the urgency of the circumstances.[10]
Ad hoc vs. Institutional Arbitration & Which Arbitral Institution to Choose?
Two issues should be considered when negotiating an arbitration clause in light of this Arrangement. First, Mainland China has not yet allowed ad hoc arbitration in its own jurisdiction.[11] Its attitude towards ad hoc arbitration is also reflected in this Arrangement: only institutional arbitral proceedings seated in Hong Kong are qualified to seek court-ordered interim measures in a People’s court. Though the award of ad hoc arbitration seated in Hong Kong could be enforced by a People’s court,[12] if a foreign party intends to fully benefit from Hong Kong’s preferential arrangements with Mainland China, institutional arbitration in Hong Kong would be a more valuable choice than ad hoc arbitration.
Shanghai Marine Court granted the first application pursuant to this Arrangement on October 8, 2019 for a settlement agreement enforcement arbitration submitted to HKIAC.[13] Notice, however, that the parties initially conducted an ad hoc arbitration to solve the original contract dispute and reached that settlement agreement agreeing upon HKIAC arbitration thereof. If such an institutional arbitration clause had not been negotiated and included in that settlement agreement, this application could not have been granted.
Second, the choice of arbitration institution should be deliberately considered because not all of the institutional arbitration seated in Hong Kong is entitled to such court-ordered interim measure aid. The arbitral institutions or permanent offices which administer “arbitral proceeding in Hong Kong” for the purpose of this Arrangement have to satisfy certain requirements,[14] then apply to the HKSAR government and obtain mutual confirmation from both the SPC and the HKSAR government to be qualified.[15] The first confirmed arbitral institutions have been promulgated[16] and other arbitral institutions can be confirmed upon application in the future. Of those first six arbitral institutions or permanent offices, CIETAC Hong Kong office and SCIAC (Hong Kong) are permanent offices of arbitral institutions which are organized and registered in Mainland China. They excel in Chinese arbitration practice. Compared to ICC Asia Office and HKIAC, however, they may be less attractive because they are from the same jurisdiction as Sino parties.
Practical Concerns When Seeking Interim Measures in A People’s Court
Some specific and practical concerns should also be addressed when seeking interim measures in a People’s court. Procedural as they may be, they can affect the success of the application. The first concern is to decide to which court to apply. The applicant may apply to the Intermediate People’s Court of the place of residence of the party against whom the application is made, or to the Intermediate People’s Court of the place where the property or evidence is situated.[17] However, this Arrangement requires that the People’s court which accepts the interim measure application be the same as the one to accept the enforcement application.[18] This requirement comes out of consideration for judicial efficiency; the ultimate purpose of interim measures is to guarantee the enforcement of the arbitral award.[19] Thus, there may be a trade-off between one court that is more advantageous for ordering interim measures and another that is more convenient for enforcing the arbitral award. Considering the urgency required for the interim measure, it might be practical to apply to the court where the interim measure can be directly implemented, since it has no need to ask for further assistance from another court, which may prolong the implementation process.
The second concern is with regard to the notarization and authentication requirement. A foreign applicant’s documents of identity, as part of the materials for the interim measure application,[20] must be notarized and authenticated before their submission. The People’s Court bears a fairly rigid judicial attitude towards evidence formed outside Mainland China, requesting that all such evidence, including documents of identity, be notarized and authenticated.[21] Note that although notarization and authentication are a matter of formality, failing to complete those steps in a timely manner would jeopardize an application.
Another concern is with regard to security provision. The People’s courts may at their discretion require the foreign applicant to provide security for ordering property preservation or conduct preservation. Further, if such application is made before the relevant institution or permanent office has accepted the arbitration case, security must be provided.[22] Though there are legitimate policy justifications for requiring security provision, and Sino applicants face the same requirement,[23] it may in reality constitute an obstacle to the application’s success. Once required by the People’s court, failure to provide security may lead to the refusal to grant an interim measure.[24] Nevertheless, the foreign applicant may own no property in Mainland China, or the value of such property located in Mainland China may be not sufficient to satisfy the security requirement. Thus, a practical solution may be to ask a local or national guarantee company to provide security at some consideration; however, to do so entails hasty and expeditious negotiations at costs. It still remains to be seen how the People’s courts will exercise their discretion pursuant to this Agreement in regard to security provision. However, it is wiser for foreign applicants to prepare themselves in advance for such a security provision request.
On the other hand, certain conveniences related to the “pass-on” requirement in light of this Arrangement are noteworthy. Article 3 paragraph 2 of this Arrangement requires interim measure application materials produced by the applicant to be passed on to the relevant arbitral institution or permanent office, together with a pass-on letter addressed by such relevant arbitral institution or permanent office to the People’s court.[25] However, in practice, the SPC allows applicants submitting the interim measure application materials with the pass-on letter to proceed directly to the relevant People’s court, considering that the rigidity of the pass-on requirement may, given the urgency of the circumstances, jeopardize the application since Hong Kong is located outside Mainland China.[26] In the first application under this Arrangement, this is how HKIAC and the applicant proceeded.[27]
Conclusion
In light of this Arrangement, institutional arbitration is recommended. Parties
should deliberately consider the suitable arbitration institution during
arbitration clause negotiation, and choose the suitable court among the
competent People’s courts for granting an interim measure. Besides other
procedural concerns this article has mentioned, an applicant should prepare
well in advance for how to satisfy the possible security provision requirement to
ensure a successful application. Nevertheless, this Arrangement’s importancefor
Sino-related arbitration “cannot be overstated”,[28]
as Sarah Grimmer, Secretary-General of HKIAC has commented. Hong Kong will surely
become a more attractive arbitration seat henceforth.
[1] Judicial Interpretation〔2019〕No.14
[2] As the highest court in the People’s Republic of China, the SPC also functions as a de-facto rule-making power holder. Its judicial interpretation has played an important role directing judicial practice in Mainland China. Regarding the legal status, functions and limits of the SPC’s Judicial Interpretation, please see Li Wei, Judicial Interpretation in China, 5 Willamette J. Int’l L. & Dis. Res. 87 (1997).
[3] Investment arbitrations between a state party and a private party are not covered by this Arrangement.
[4] Please see Part One of《<最高人民法院关于内地与香港特别行政区法院就仲裁程序相互协助保全的安排>的理解与适用》(The Interpretation and Application 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 Hong Kong Special Administration Region), (Sep. 26, 2019),
[5] The Arrangement on Mutual Entrustment in Service of Judicial Documents in Civil and Commercial Matters 1998; the Arrangement Concerning Mutual Enforcement of Arbitral Awards 1999; the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters Pursuant to Choice of Court Agreements between Parties Concerned 2006; the Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters 2016; the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters (signed in January 2019, but has not come into force yet. The Choice of Court Arrangement will be superseded upon its commencement). Another arrangement is the Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases 2017.
[6] See Interim Measure Arrangement, Article 1, “Interim measure” referred to in this Arrangement includes, in the case of the Mainland, property preservation, evidence preservation and conduct preservation.
[7] See Article 100 of the Civil Procedure Law of PRC.
[8] See Article 81 ofthe Civil Procedure Law of PRC.
[9] See Id. Article 81, Article 100.
[10] See Wang, Shizhou, Civil Procedure in China 159 (2014).
[11] Article 16 of the Arbitration Law of PRC requires that an arbitration agreement must contain a designated arbitration commission; otherwise the agreement will be invalid. Regarding the consensus that ad hoc arbitration is not admitted in Mainland China, please see Shahla F. Ali & Tom Ginsburg, International Commercial Arbitration in Aisa 88-90 (2013).
[12]《最高人民法院关于香港仲裁裁决在内地执行的有关问题的通知》法［2009］415号 (Notice of the Supreme People’s Court on Issues concerning the Execution of Hong Kong Arbitral Awards in the MainlandNo. 415 [2009]).
[13] See “全国首例！上海海事法院裁定准许香港仲裁程序中的保全申请”, (the First Instance! Shanghai Marine Court Granted an Interim Measure Application in Aid of A Hong Kong Arbitral Proceeding), (Oct. 9, 2019),
[14] See Interim Measure Arrangement, Article 2 paragraph 1.
[15] See Interim Measure Arrangement, Article 2 paragraph 2.
[16] These arbitral institutions are: Hong Kong International Arbitration Centre, China International Economic and Trade Arbitration Commission Hong Kong Arbitration Center, The Asia Office (Hong Kong) of the International Chamber of Commerce (ICC) International Court of Arbitration, Hong Kong Maritime Arbitration Group, South China International Arbitration Center (Hong Kong) and eBRAM International Online Dispute Resolution Centre.
[17] See Interim Measure Arrangement, Article 3 paragraph 1.
[18] See Supra note 4, (4) of Part Two.
[19] Id.
[20] See Interim Measure Arrangement, Article 4 paragraph 1, paragraph2.
[21] Wang, Shizhou, Supra note 10, at 23-24.
[22] Id. at 159-160.
[23] Id. at 160.
[24] Id.
[25] See Article 272 of the Civil Procedure Law of PRC.
[26] See Supra note 4, (2) of Part Five.
[27] “HKIAC Receives Five Applications under Hong Kong-Mainland Arrangement on Interim Measures”, (Oct.11, 2019), https://www.hkiac.org/news/five-interim-relief-applications-under-new-arrangement.
[28] Id.