CIETAC, the preeminent arbitration commission for foreign-related arbitrations in China, has issued new arbitration rules that will become effective as of 1 May 2012 (the 2012 Rules). The inclusion of interim measures and consolidation are among the highlights.
This is the first time that the CIETAC arbitration rules have allowed an arbitral tribunal to grant interim measures. Under Article 21(2) of the 2012 Rules, the arbitral tribunal now has the express authority, at the request of a party, to order "any interim measure it deems necessary or proper in accordance with the applicable law". The interim measure may take the form of a procedural order or an interlocutory award.
However, the Civil Procedure Law of the PRC only provides for two interim measures, being preservation of property and protection of evidence. Only the competent court has the power to grant these two orders. It therefore appears that the arbitral tribunal's power to grant interim measures will not include these two types of interim measures.
Instead, it seems that the tribunal's power will mainly be aimed at suspending, or preventing, a party from carrying on certain conduct during the process of the arbitration. For example, an arbitral tribunal could grant a procedural order or make an interlocutory award to suspend or prohibit a party from carrying out certain acts, such as intellectual property infringement. Further, the arbitral tribunal is also empowered to require the requesting party to provide appropriate security in connection with the measure.
Unlike, for instance, the ICC Rules or the SIAC Rules, the 2012 Rules do not adopt an emergency arbitrator regime. It remains unclear what CIETAC would do if a party requests interim measures prior to the constitution of the arbitral tribunal.
Consolidation of Arbitrations
Another first for CIETAC is that the 2012 Rules provide for the concept of consolidation of arbitrations. Article 17(1) allows CIETAC to consolidate two or more cases with the agreement of all the other parties concerned. Yet this also means that one dissenting party can prevent consolidation. The consolidation provisions are nevertheless considered a major step forward for CIETAC, in view of the increased number of multi-party and multi-contract disputes over the last few years. It is believed that in the cases which are consolidated, the arbitral process will be more time efficient and less costly. But unfortunately the CIETAC does not go as far as the ICC, LCIA, HKIAC, and SIAC rules in including joinder provisions.
In conclusion, the 2012 Rules contain some new innovations such as consolidation of arbitrations and interim measures. These measures should increase the efficiency of CIETAC proceedings and make CIETAC arbitration more attractive to the international community.