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CIETAC, the preeminent arbitration commission for
foreign-related arbitrations in China, has issued new arbitration
rules that will become effective as of 1 May 2012 (the 2012 Rules).
The inclusion of interim measures and consolidation are among the
highlights.
Interim Measures
This is the first time that the CIETAC arbitration rules have
allowed an arbitral tribunal to grant interim measures. Under
Article 21(2) of the 2012 Rules, the arbitral tribunal now has the
express authority, at the request of a party, to order "any
interim measure it deems necessary or proper in accordance with the
applicable law". The interim measure may take the form of a
procedural order or an interlocutory award.
However, the Civil Procedure Law of the PRC only provides for
two interim measures, being preservation of property and protection
of evidence. Only the competent court has the power to grant these
two orders. It therefore appears that the arbitral tribunal's
power to grant interim measures will not include these two types of
interim measures.
Instead, it seems that the tribunal's power will mainly be
aimed at suspending, or preventing, a party from carrying on
certain conduct during the process of the arbitration. For example,
an arbitral tribunal could grant a procedural order or make an
interlocutory award to suspend or prohibit a party from carrying
out certain acts, such as intellectual property infringement.
Further, the arbitral tribunal is also empowered to require the
requesting party to provide appropriate security in connection with
the measure.
Unlike, for instance, the ICC Rules or the SIAC Rules, the 2012
Rules do not adopt an emergency arbitrator regime. It remains
unclear what CIETAC would do if a party requests interim measures
prior to the constitution of the arbitral tribunal.
Consolidation of Arbitrations
Another first for CIETAC is that the 2012 Rules provide for the
concept of consolidation of arbitrations. Article 17(1) allows
CIETAC to consolidate two or more cases with the agreement of all
the other parties concerned. Yet this also means that one
dissenting party can prevent consolidation. The consolidation
provisions are nevertheless considered a major step forward for
CIETAC, in view of the increased number of multi-party and
multi-contract disputes over the last few years. It is believed
that in the cases which are consolidated, the arbitral process will
be more time efficient and less costly. But unfortunately the
CIETAC does not go as far as the ICC, LCIA, HKIAC, and SIAC rules
in including joinder provisions.
In conclusion, the 2012 Rules contain some new innovations such
as consolidation of arbitrations and interim measures. These
measures should increase the efficiency of CIETAC proceedings and
make CIETAC arbitration more attractive to the international
community.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Serving multiple statutory demands for various parts of a single debt could be found to be an abuse of process.
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