Interim arbitration measures between mainland China and Macau

By Zhang Guanglei and Cai Xiaoxia, Jingtian & Gongcheng
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On 24 February 2022, the Supreme People’s Court published the Arrangement Concerning Mutual Assistance in Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and the Macau Special Administrative Region (the Mainland-Macau interim measure arrangement). Based on the Arrangement for Mutual Recognition and Enforcement of Arbitral Awards between the Mainland and the Macau Special Administrative Region (Mainland-Macau mutual recognition arrangement), the Mainland-Macau interim measure arrangement provides further assurance for cross-border enforcement of arbitral awards on both sides.

Prior to issuance of the Mainland-Macau interim measure arrangement, a party to a mainland arbitral proceeding may apply to courts in Macau for interim measures pursuant to the Macau arbitration law both before and during arbitration. However, except in maritime cases, mainland courts cannot provide interim measures to parties of arbitral proceedings in Macau.

Zhang Guanglei, Jingtian & Gongcheng, Hong Kong International Arbitration Centre, Interim arbitration measures between mainland China and Macau
Zhang Guanglei
Partner
Jingtian & Gongcheng

The introduction of the Mainland-Macau interim measure arrangement provides a clear standard and basis for parties to arbitral proceedings in Macau to apply to mainland courts for interim measures. Meanwhile, it serves as a practical guide for parties to mainland arbitral proceedings to apply to Macau courts for interim measures.

With a total of 12 articles, the Mainland-Macau interim measure arrangement has largely the same content as that of the Arrangement Concerning Mutual Assistance in Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (Mainland-Hong Kong interim measure arrangement). It deals with issues including the types of interim measures, applicable arbitration proceedings, and the procedure of applying for interim measures. This article aims to sort out and interpret relevant key points for readers’ reference.

Types of interim measures. To protect the rights of parties to cross-border arbitration to the greatest extent, the Mainland-Macau interim measure arrangement enumerates and includes all types of interim measures under both mainland and

Macau law. A party to arbitral proceedings in Macau may apply to mainland courts for the preservation of property, evidence and conduct. A party to arbitral proceedings in the mainland may apply to Macau’s courts for “preservation or advance measures to ensure the realisation of threatened rights”, an expression intended to cover all types of interim measures under the laws of Macau.

Applicable arbitral proceedings. The Mainland-Macau interim measure arrangement limits the scope of applicability to civil and commercial arbitral proceedings brought to the arbitration institutions of either side. Like the Mainland-Hong Kong interim measure arrangement, it excludes ad hoc arbitral proceedings and those administered by other national or regional arbitral institutions. However, unlike the Mainland-Hong Kong interim measure arrangement, it includes all arbitration institutions established according to Macau law, as there are only a limited number of them.

Courts of competent jurisdiction. The competent mainland court to accept interim measure applications shall be the intermediate people’s court of the place or domicile of the party against whom the application is made, or the place where the property or evidence involved is situated; and the applicant can make an application to one of those people’s courts only. The competent Macau courts to accept interim measure applications shall be restricted to the primary courts of the region.

Stage of application. According to the Mainland-Macau interim measure arrangement, parties to arbitral proceedings on either side may apply for interim measures both before and during the arbitration. Previously, the Mainland-Macau mutual recognition arrangement had provided for interim measures after the arbitral award is made, before or after the court accepts an application for recognition and enforcement of an arbitral award.

Cai Xiaoxia, Jingtian & Gongcheng, Interim arbitration measures between mainland China and Macau
Cai Xiaoxia
Associate
Jingtian & Gongcheng

With both arrangements in place, all parties will be able to resort to interim measures throughout the arbitral proceedings. For pre-arbitration interim measures, parties to arbitral proceedings in Macau should submit a certificate of acceptance of the arbitration case by a relevant arbitration institution within 30 days after interim measures are taken by the mainland court. Otherwise, the mainland court would lift such measures. Parties to mainland arbitral proceedings should take necessary measures under Macau law to initiate the arbitration, and submit relevant supporting documents to the court of Macau, otherwise the interim measures would be non-effective.

For mid-arbitration interim measures, unlike the Mainland-Hong Kong interim measure arrangement, the Mainland-Macau interim measure arrangement does not require an interim measure application to be forwarded by the arbitration institution in Macau. Instead, parties to arbitral proceedings in Macau may apply directly to the mainland court for interim measures to improve efficiency.

Application materials required. To apply to a mainland court for interim measures, the party should submit the application for interim measures, the arbitration agreement and documents of identification. In mid-arbitration applications, the request for arbitration and relevant evidential material, as well as a letter evidencing the acceptance of the arbitration case by a relevant arbitration institution, should also be submitted.

Requirements in the Mainland-Macau interim measure arrangement for notarisation and certification of the application material are consistent with those in the Mainland-Hong Kong interim measure arrangement, which are relatively loose as it only requires that identity documents issued outside the mainland be certified according to mainland law.

The application material required to apply for interim measures to a Macau court are roughly the same as those mentioned above. Applicants must additionally explain to the court whether other similar applications have been filed, and their status. If a document submitted to a Macau court is not in any of the local official languages (Chinese or Portuguese) an accurate translation must be provided.

Review and relief. The Mainland-Macau interim measure arrangement provides that a court shall examine a party’s application for interim measures as soon as possible, and decide according to local law whether to require the applicant to provide security, the type of security, and whether to approve the interim measures. If the party is dissatisfied with the result, the matter will be handled according to local law.

Specifically, in the mainland, the party may apply to the court that issued the order for reconsideration within five days upon receipt of such an order. In Macau, where the court failed to hear the statement of the party against whom interim measures are taken before granting the measures, the party may appeal if they believe that the court should not grant such measures, or file a defence claiming that the interim measures taken by the court were inappropriate. In the latter case, a judge shall make a decision against which the party may appeal.

Zhang Guanglei is a partner and Cai Xiaoxia is an associate at Jingtian & Gongcheng. Zhang is also an arbitrator at the Hong Kong International Arbitration Centre, Shenzhen Court of International Arbitration and Shanghai International Arbitration Centre

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