May 2022
Joyce Wen and Teresa Huang
On 24 February 2022, the Supreme People’s Court promulgated the Arrangement of the Supreme People’s Court Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Mainland and the Macao Special Administrative Region (hereinafter, the “Arrangement”). The Arrangement, together with the Arrangement between the Mainland and the Macao Special Administrative Region （hereinafter, “SAR”）on Reciprocal Recognition and Enforcement of Arbitration Awards by the Mainland and the Macao SAR signed between the two jurisdictions in 2007, enables mutual assistance in the field of arbitration between the Mainland and Macao SAR. The main contents of this Arrangement, which came into force on March 25, 2022, are highlighted below:
1. Confirmation of the types of preservatory interim measures to be adopted. The Arrangement covers the types of preservatory interim measures that can be taken in both jurisdictions, including the preservation of property, evidence, and conduct. In the Macao SAR, they include preservatory or anticipatory measures to ensure the realization of jeopardized rights.
2. Clarification of the applicable arbitration procedures. The arbitration procedures in which the Mainland and the Macao SAR may assist each other with court-ordered interim measures are limited to civil and commercial arbitration procedures initiated in the arbitration institution in the Macao SAR in accordance with the Arbitration Rules of the Macao SAR and the civil and commercial arbitration procedures initiated in an arbitration institution on the Mainland in accordance with the Arbitration Law of the People’s Republic of China.
3. Confirmation of the time when the application for preservatory interim measures may be made. Pursuant to Articles 2 and 5 of the Arrangement, the parties may apply for preservatory interim measures before an arbitral award is rendered by providing appropriate security and paying fees in accordance with the laws of the jurisdictions where the application is sought. If the application for preservatory interim measures is made before the arbitration case is accepted by the arbitration institution, the applicant shall initiate arbitration proceedings with the arbitration institution within the required period (in the case of an application for preservatory interim measures to the Mainland) or carry out the necessary measures for the arbitration proceedings (in the case of application for preservatory interim measures to the Macao SAR). Otherwise, the preservatory interim measures will be discharged by the court or directly invalidated.
4. Clarification of the materials for applying for preservatory interim measures. Articles 3 and 6 of the Arrangement specify the materials to be submitted for the application for preservatory interim measures. It should be noted that if the documents included in the application to the people’s courts in the Mainland do not contain Chinese texts, a Chinese translation should be submitted. If the documents applied to the courts of the Macao SAR for preservation are not in one of the official languages of the Macao SAR, the applicant shall submit a translation of the documents in one of the official languages.
With the promulgation of the Arrangement, parties who need to apply for preservatory interim measures in the course of arbitration proceedings have rules to follow in order to achieve the objective of protecting rights as early as possible.