The Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the HKSAR (the “Arrangement”), signed by the Mainland Supreme People’s Court (the “SPC”) and the HKSAR Department of Justice in April 2019 came into effect on 1 October 2019.
The Arrangement makes Hong Kong the only foreign seat of arbitration where parties can seek interim relief directly from Mainland Chinese courts.
In the two weeks since implementation, the HKIAC has received five applications from parties seeking an ex parte order to preserve assets located in the Mainland. According to the HKIAC, all five applications were made in ongoing arbitrations seated in Hong Kong and administered by the HKIAC under its Administered Arbitration Rules. One of the applications has already been determined successfully by the Shanghai Maritime Court, in favour of the party seeking relief. The remaining four applications are pending decision of the relevant Mainland court.
Scope of Application
Interim relief in the Mainland (generally referred to as preservation measures) has typically been available only in respect of domestic arbitral proceedings. As of 1 October 2019, parties to Hong Kong seated arbitrations administered by eligible designated arbitral institutions can now apply to Mainland courts for three types of interim relief: property preservation, evidence preservation, and conduct preservation (Art. 1).
Whilst the Arrangement is reciprocal, Hong Kong courts have long had jurisdiction to grant interim relief in aid of foreign arbitral proceedings, including arbitrations seated in the Mainland, pursuant to section 21M of the High Court Ordinance (Cap. 4) and section 45 of the Arbitration Ordinance (Cap. 609). The reciprocal undertaking in Art. 6 maintains this position.
Prescribed List of Qualified Institutions
The Arrangement applies to Hong Kong seated arbitrations administered by a list of arbitral institutions prescribed by the relevant Hong Kong and Mainland authorities (Art. 2). Due to this qualification, the Arrangement will not extend to ad hoc arbitration.
Currently, the following institutions are qualified under Art. 2(1):
Application Procedure
Applications for interim measures in the Mainland are to be made to the Intermediate People’s Court of the place of residence of the party against whom the application is made or the place where the property or evidence is situated (Art. 3). Applications can be made both before or after the relevant qualified institution has accepted the case. For Mainland seated arbitrations, applications are made to the High Court of the HKSAR pursuant to the High Court Ordinance (Cap. 4) and Arbitration Ordinance (Cap. 609) (Art. 6).
Arts. 4, 5 and 7 of the Arrangement stipulate in detail the particulars and supporting documents required for the application, which will be determined according to the law of the requested place. Parties should therefore be cognisant of the different approaches taken by HKSAR and Mainland courts to the granting of interim relief.
Implications of the Arrangement
The Arrangement catapults Hong Kong into a unique position, being the only foreign jurisdiction where parties to arbitral proceedings can apply to Mainland courts for interim relief. This will inevitably enhance the competitiveness and strength of Hong Kong as a centre for international dispute resolution, particularly against the backdrop of the Belt and Road and Greater Bay Area initiatives, where disputes will inevitably involve Mainland counterparties.
For parties requiring enforcement in the Mainland, the Arrangement represents a very welcome development.
