Joyce Wen
On September 26, 2019, the Supreme People’s Court promulgated the Arrangement of the Supreme People’s Court Concerning Mutual Assistance in Interim Measures by the Courts of the Mainland and of the Hong Kong Special Administrative Region in Aid of Arbitral Proceedings (the “Arbitration Preservation Arrangement”), which is the seventh judicial assistance arrangement entered between the Chinese mainland and Hong Kong and is also the first document executed by the Chinese mainland with other jurisdictions on court-ordered interim measures in the aid of arbitral proceedings. The Arbitration Preservation Arrangement came into effect on October 1, 2019.
Consisting of 13 articles in total, the Arbitration Preservation Arrangement contains comprehensive provisions on the scope of the court-ordered interim measures, the definition of Hong Kong arbitral proceedings, the procedure for applying for interim measures, and how an application for interim measures is to be handled. Firstly, “court-ordered interim measures” under the Arrangement are defined to include property preservation, evidence preservation and conduct preservation. In the case of the Hong Kong Special Administrative Region (the “HKSAR”), such measures also include injunctions and other interim measures for the purpose of maintaining or restoring the status quo pending determination of the dispute; taking an action that would prevent ongoing or imminent harm or impairment to the arbitral proceedings, or enjoining an action that would a cause such harm or impairment; as well as the preservation of evidence which may be relevant or important to the resolution of the disputes. Secondly, the Hong Kong Arbitration Procedure referred to in Article 2 of the Arbitration Preservation Arrangement refers to arbitration procedures in which Hong Kong is the place of arbitration and are managed by a specific institution or permanent office. The list of such institutions or permanent offices shall be provided to the Supreme People’s Court by the HKSAR Government and confirmed by both parties. This also means that the Arbitration Preservation Arrangement is limited to arbitrations conducted by institutions with Hong Kong as the place of arbitration and does not include ad hoc arbitration. In addition, the court in the Chinese mainland that accepts an interim measure application shall be the intermediate people’s court where the party subject to the application resides or the property of such party or evidence is located, and the application may be filed with only one such people’s courts. Finally, the Arbitration Preservation Arrangement also provides for the materials that should be submitted for the interim measure application.
After the implementation of the Arbitration Preservation Arrangement, the courts in the two jurisdictions will be able to guarantee the smooth implementation of an arbitral award through preventive remedies. This will further enhance the competitiveness of international arbitration in the HKSAR and provide tremendous support for the establishment of an international law and dispute resolution service center for the Asia Pacific in the HKSAR.