In many jurisdictions, a standard feature of international arbitration is that parties to an arbitration agreement can request interim relief from national courts in support of ensuing or ongoing arbitral proceedings, whether seated in that jurisdiction or abroad. Mainland China was, until now, an exception to this practice. While Hong Kong has, to a large extent, adopted the UNCITRAL Model Law and its courts readily assist parties to international arbitral proceedings by accepting requests for interim measures, the courts in the Mainland have not done so in the past (except in certain maritime matters). Rather, recourse to interim measures was available solely for arbitrations seated in Mainland China and administered by government-approved arbitral institutions. However, Mainland China has now empowered its courts to accept interim measure requests from a wider group of users.
On 2 April 2019, the Chinese Supreme People's Court and the Government of the Hong Kong Special Administrative Region signed an 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 (“Arrangement”). Pursuant to this Arrangement, parties agreeing to arbitration administered by designated Hong Kong arbitral institutions and seated in Hong Kong will be able to seek interim measures from Mainland Chinese courts. The same applies vice versa, although this is not a new development, since the Hong Kong Arbitration Ordinance already allows parties to arbitration agreements to seek interim measures from Hong Kong courts.
The Arrangement has been signed and will enter into force at a later, yet to be announced, date. It will apply where there is an arbitration agreement for institutional arbitration seated in Hong Kong and administered by an arbitral institution included on a list of Hong Kong-based institutions published by the Hong Kong Government. Accordingly, the Arrangement does not apply to ad hoc arbitrations, to arbitrations seated outside of Hong Kong – even if administered by a listed institution – or to Hong Kong-seated arbitrations administered by non-listed institutions.
These requirements are reminiscent of the arbitration regime generally applicable to arbitrations seated in Mainland China, which effectively prohibits ad hoc arbitration by prescribing that arbitration agreements need to specify an arbitral institution included in a government-approved list in order to be valid.
Regarding the list of institutions to be published by the Hong Kong Government, it is understood that this will likely include the HKIAC, ICC (likely only where these are administered by its Hong Kong based case management team) and CIETAC Hong Kong Arbitration Center. All institutions to be included on the list by the Hong Kong Government will need confirmation from the Chinese Supreme People's Court.
The Arrangement applies at any time before an arbitral award has been made regarding the matter in dispute and also applies even if arbitral proceedings are yet to be initiated. Hence, the Arrangement also allows parties to seek interim measures as the first step in a dispute resolution process, a possibility that can be vital to the effective preservation and enforcement of a party's rights.
Finally, it is understood that the Arrangement will apply to all arbitrations from the date it enters into force independent of whether the proceedings concerned are commenced only after such date, or are already ongoing at the time.
The procedure for applying for interim measures under the Arrangement mirrors the procedure applicable to interim measures applications of parties to Mainland China-seated arbitrations.
If interim measures are required before an arbitration is commenced, the application can be made directly to the competent Chinese People's Court. In this case, an arbitration has to be commenced and the administering arbitral institution has to confirm the commencement to the relevant Chinese People's Court within 30 days from the measure being imposed. Otherwise the measure will be lifted.
If an arbitration has already been commenced, the party seeking interim measures cannot directly turn to the Chinese courts. Instead, it must first lodge the application with the administrating arbitral institution, which will then forward the application to the competent Chinese People's Court.
With the Arrangement, Mainland China now offers parties to arbitration agreements having a non-Mainland Chinese seat effective recourse to interim measures in the Chinese Mainland. This is a highly welcome step and marks a further milestone on Mainland China's way to a wholly modern arbitral regime.
As access to interim relief pursuant to the Arrangement is only available where arbitration agreements determine an approved institution and seat located in Hong Kong, the Arrangement will undoubtedly further strengthen Hong Kong's role as the preferred venue for arbitrating China-related disputes. As such, it will serve to increase Hong Kong's role as a predominant arbitration hub in Asia and will help to protect and effectively enforce international parties' rights and interests within the Chinese Mainland.