Focus on arbitral mutual assistance arrangement for mainland, HK courts

By Zhang Dan and Zhu Hongyu, AnJie Law Firm

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, signed by the Supreme People’s Court (SPC) and the Hong Kong Department of Justice, has been implemented since 1 October 2019.

Zhang Dan AnJie Law Firm Arbitral Proceedings
Zhang Dan
AnJie Law Firm

According to the arrangement, parties to Hong Kong arbitral proceedings and mainland arbitral proceedings can apply to the courts of the mainland and Hong Kong for interim measures during arbitral process. This is the seventh judicial assistance arrangement signed between the mainland and Hong Kong, and it is also the first document that the mainland has signed to provide assistance in interim measures in aid of arbitral proceedings to another jurisdiction.

Q: What are the types of interim measures?

A: The interim measures that can be applied in the mainland courts include property preservation, evidence preservation and action preservation. The preservation measures that can be applied in Hong Kong courts include different types of injunctions and other interim measures.

Zhu Hongyu AnJie Law Firm Arbitral Proceedings
Zhu Hongyu
AnJie Law Firm

Q: How are “arbitral proceedings in Hong Kong” and “arbitral proceedings in the mainland” defined?

A: “Arbitral proceedings in Hong Kong” shall satisfy two conditions. One is that an arbitration case shall be seated in Hong Kong, and be administered by institutions or permanent offices established in Hong Kong. The other is that it shall not include investment arbitrations between investors and the host state, or region. The list of such institutions or permanent offices is to be provided by the Hong Kong government to the SPC, and be subject to confirmation by both sides. There are six institutions on the list until now, including: the Hong Kong International Arbitration Centre; the China International Economic and Trade Arbitration Commission Hong Kong Arbitration Centre; the International Court of Arbitration of the International Chamber of Commerce – Asia Office; the Hong Kong Maritime Arbitration Group; the South China International Arbitration Centre (HK); and the eBRAM International Online Dispute Resolution Centre.

“Arbitral proceedings in the mainland” refers to proceedings administered by the mainland arbitration institutions.

Q: How are the competent courts to accept applications for interim measures in the mainland and Hong Kong determined?

A: Competent mainland courts to accept application for interim measures include the intermediate people’s court at the domicile place of the party against whom the application for interim measures is made, or the place where the property or evidence is situated. If the above-mentioned places fall within the jurisdiction of different courts, the applicant may make an application to any one of those courts.

The competent Hong Kong court to accept application for interim measures is the High Court of the Hong Kong Special Administrative Region (HKSAR).

Q:What are the time limits or procedure requirements for the application of interim measures?

A: Before arbitral proceedings start, a party to arbitral proceedings in Hong Kong may, by referring to the provisions of the Civil Procedure Law of the People’s Republic of China, the Arbitration Law and relevant judicial interpretations, make an application for interim measures to the mainland courts. A party applying for interim measures to the mainland court before arbitral proceedings start shall submit certification materials after the case is accepted. If, within 30 days after the interim measure is taken, the mainland court has not received a letter from the said institution certifying its acceptance of the arbitration case, the mainland court shall discharge the interim measures. Where an application for interim measures is made after arbitral proceeding started, the party’s application shall be passed on to the mainland courts by the arbitration institution that accepted the case.

Before the arbitral award is made, a party to arbitral proceedings in the mainland may, pursuant to the Arbitration Ordinance and the High Court Ordinance, apply to the High Court of the HKSAR for interim measures.

Q: What materials shall be submitted for the application of interim measures?

A: An applicant applying to a mainland court for interim measures shall submit the following materials: (1) an application for interim measures; (2) an arbitration agreement; (3) documents of identity;(4)a request for arbitration, together with the relevant evidential materials, as well as a letter certifying the relevant arbitration case is accepted (where a party makes an application for interim measures after the arbitration case is accepted); and(5)any other materials required by the mainland court.

Where a document of identity is issued outside the mainland, such document shall be notarized and certified. Where any of the above-mentioned documents is not in the Chinese language, the applicant shall submit a Chinese translation.

A party applying to a court of Hong Kong for interim measures shall submit an application, an affidavit supporting the application, exhibit(s), a skeleton argument and a draft court order.

Q: What are the examination and relief procedures for interim measures?

A: The mainland courts shall make a decision regarding the application for interim measures pursuant to the time limit stipulated in the Civil Procedure Law, and may require applicants to provide guarantees in accordance with mainland legal requirements. Where an applicant is aggrieved by a decision, the applicant may apply for a reconsideration pursuant to the Civil Procedure Law.

Hong Kong courts handle the issuance of injunction and relevant relief matters pursuant to the High Court Ordinance of Hong Kong. Hong Kong courts may, depending on the case, pursuant to the relevant laws and regulations, require applicants to make a commitment and provide guarantee for the expenses, etc.

Q:What is the retroactivity of the arrangement?

A: Regardless of whether an arbitral proceeding starts before the arrangement has come into effect, the arrangement is applicable to all applications for interim measures submitted after the arrangement came into effect. The arrangement shall not reduce the rights of the arbitration institutions, arbitral tribunals, or parties under the respective applicable laws.

Zhang Dan is a partner and Zhu Hongyu is an associate at AnJie Law Firm

Zhang Dan Zhu Hongyu AnJie Law Firm Arbitral Proceedings

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