Following Tuesday’s announcement of 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 (Arrangement), the Supreme People’s Court of China has released the full official text (in Chinese). The Hong Kong Government has also provided a courtesy English translation on its website. We expect that the official English text will be released closer to the time when the Arrangement comes into force.
Readers of this blog may be very familiar with seeking interim orders in the Hong Kong High Court in aid of on-going or prospective arbitrations seated in Mainland China, under section 45 of the Hong Kong Arbitration Ordinance (Cap. 609).
The key distinction of the “mirror image” in Mainland China is that parties to a Hong Kong-seated arbitration do not apply directly to the competent Intermediary People’s Court. Rather, the applicant should submit the interim relief application to the relevant arbitration institutions in Hong Kong, which would forward the application to the competent Intermediary People’s Court in Mainland China.
It is possible to apply for pre-arbitration interim measures in Mainland China via the Arrangement in the same procedure described above, although the People’s Court must receive proof of the institution’s acceptance of the arbitration within 30 days after the Court grants the interim measures.
At the risk of stating the obvious, although parties first submit the interim relief application to an approved Hong Kong arbitration institution, the law of the application is Chinese law. After the Court has accepted the application, the interim relief hearings must be conducted by Mainland-qualified lawyers.
The application shall include:
- the application for interim measure;
- the arbitration agreement;
- identity/incorporation documents for natural persons and legal entities, respectively;
- the request for arbitration, with exhibited evidence, and proof that the institution has accepted the case (for on-going arbitrations); and
- any other supporting materials required by the People’s Court.
There are some practical difficulties and uncertainties to bear in mind. The Arrangement requires “documents of identity” issued outside the Mainland to be certified in accordance with PRC law. This may require certification by a China-appointed attesting officer (in Hong Kong) or Chinese consulate/embassy notarisation and authentication procedures (overseas). The Arrangement also requires “accurate Chinese translation” for all documents submitted to the People’s Court. Parties must factor in the additional time and cost of meeting these requirements. The catch-all requirement for “any other materials required by People’s Court” adds additional uncertainty to the process.
The Arrangement also provides a useful list of issues that must be covered in the application to a Mainland court (Article 5). Applications must also refer to the PRC Civil Procedure Law and other laws or regulations, depending on the types of interim measures sought by the applicant. Article 5 of the Arrangement lists the following:
- basic information of the parties;
- applied interim measures, including the applied amount of assets to be preserved and particulars of the conduct and the time period;
- facts and justifications on which the application is based, together with the relevant evidence;
- clear particulars of the property and evidence to be preserved or concrete threads which may lead to a chain of inquiry;
- information about the property in the Mainland to be used as security or certification of financial standing; and
- whether any application under this Arrangement has been made in any other court, relevant institution or permanent office, and the status of such application.
What are the approved Hong Kong arbitration institutions?
“Arbitral proceedings in Hong Kong” in the Arrangement refers to arbitrations seated in the Hong Kong SAR and be administered by institutions either headquartered, or with permanent offices, in the SAR. The list of such institutions or permanent offices will be provided by the Hong Kong SAR Government to the Supreme People’s Court, and will be subject to confirmation by both sides.
We anticipate that the list of approved arbitration institutions will include at least HKIAC, the CIETAC Hong Kong Center and ICC Hong Kong. Ad hoc arbitrations seated in Hong Kong will not benefit from the Interim Measures Arrangement.
For further information on the Mainland China interim relief regime, please speak to May Tai, Kathryn Sanger, Helen Tang, Stella Hu or your usual Herbert Smith Freehills contacts.
 It is not entirely clear here for pre-arbitration applications, whether the applicants need to submit draft request for arbitration; and whether following the commencement of arbitration, the applicants need to provide the request of arbitration, on top of the letter confirming the acceptance of the case.