Focus on pre-arbitration interim measures in mainland and Hong Kong

“Pre-arbitration interim measures” refers to the interim preservative or protective measures adopted by an arbitral tribunal or a competent court prior to the commencement of arbitration proceedings, pursuant to the laws and rules applicable to the arbitration proceedings and at the request of either party concerned, mainly including evidence preservation, asset preservation and conduct preservation.

In recent years, pre-arbitration interim measures have been gradually recognised and valued by legislative bodies in various countries and arbitration institutions of all types. The court of arbitration of the International Chamber of Commerce (ICC) has adopted pre-arbitration interim measures in its latest rules of arbitration, effective from 1 January 2012. In response to this trend, legislative bodies in mainland China and Hong Kong have successively introduced pre-arbitration interim measures to their respective arbitration systems, in 2012 and 2013. We will compare the differences of pre-arbitration interim measures between mainland China and Hong Kong, and briefly discuss reciprocal enforcement in these two regions.

Pre-arbitration interim measures

Mainland China: China’s Civil Procedure Law (CPL), which came into effect on 1 January 2013, introduced pre-arbitration interim measures to the arbitration system in the mainland for the first time. Article 101 of the CPL provides that any interested party may apply to a competent people’s court for preservation measures prior to applying for arbitration. Meanwhile, pursuant to other relevant provisions of the CPL, pre-arbitration interim measures include asset preservation, conduct preservation and evidence preservation.

The Supreme People’s Court has not yet issued any detailed judicial interpretations for the implementation of pre-arbitration interim measures in practice, resulting in uncertainty over the actual application of such measures.

Chen Luming is a partner at the Shanghai office of Jun He Law Offices. He can be contacted on +86 21 2208 6396, or by email at: chenluming@junhe.com.