The Mainland-HK arrangement: HKIAC practice and experience

The Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and the Hong Kong Special Administrative Region has been one of the most important developments for the Hong Kong International Arbitration Centre (HKIAC) in the past year.

The arrangement allows for any party to arbitral proceedings seated in Hong Kong and administered by a qualified arbitral institution (such as the HKIAC) to apply to the Intermediate People’s Court (IPC) of the place of residence of the party against whom the application is made, or the place where the property or evidence is situated, for interim measures in accordance with the Civil Procedure Law, Arbitration Law, and any relevant judicial interpretations.

In relation to applications to the IPC by parties to arbitral proceedings seated in Hong Kong and administered by the HKIAC, the HKIAC may provide assistance to the parties by facilitating any applications for interim measures under the arrangement before or after the HKIAC accepts the arbitration.

Where the HKIAC has accepted an arbitration, it may issue a letter of acceptance upon a party’s request, and communicate copies of that letter to the requesting party only upon the IPC’s request.

When a party wants to make a request for a letter of acceptance, the HKIAC requires the following material:

• A request for a letter of acceptance;
• A copy of the application that the party intends to submit to the IPC, including any supporting material (or if the party has applied to the IPC first, a copy of the application that has been made to the IPC, with supporting material);
• If the party has applied to the IPC before starting arbitration, a copy of the IPC’s decision on the application;
• An indication as to whether any other party to the arbitration should be copied on communications in relation to the request; and
• Any other documents or information required by the HKIAC.

Since the entry into force of the arrangement on 1 October 2019, the HKIAC has received 13 applications under the arrangement. All 13 applications were made in ongoing arbitrations seated in Hong Kong and administered by the HKIAC under its administered arbitration rules.

Of the 13 applications, 12 were made for orders to preserve assets, and one was for an order to preserve evidence. All applications were made on an ex parte basis and involved applicants and respondents from Hong Kong, mainland China and other jurisdictions.

The applications were made to nine different mainland Chinese courts. The HKIAC is aware of at least five of the applications for preservation of assets having been granted to the total value of approximately RMB1.7 billion (US$243 million). In each of the applications, the HKIAC has issued a letter of acceptance to the applicant, and in some cases has provided a copy of the letter of acceptance, or the applicant’s application, directly to the relevant court upon the court’s request.