On 1 October 2019, 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) came into effect. The Arrangement allows a party in approved Hong Kong administered arbitral proceedings, whether commenced before or after 1 October 2019, to apply to the relevant Mainland Intermediate People's Court for an interim measure in aid of those proceedings. The Arrangement gives effect to the principle of "one country, two systems" and gives Hong Kong an edge over other jurisdictions outside the Mainland as the seat of arbitration.
The purpose of the Arrangement is to facilitate the enforcement of an award expected to be obtained in Hong Kong arbitral proceedings and to protect the rights and interests of the parties to those proceedings. The types of interim measures which the Mainland courts may grant include property, asset, evidence and conduct preservation orders.
The arbitral proceedings must be seated in Hong Kong and be administered by the following:
- arbitral institutions established or having their headquarters established in Hong Kong, and with their principal place of management located in Hong Kong;
- dispute resolution institutions or permanent offices set up in Hong Kong by international intergovernmental organisations of which the PRC is a member; or
- dispute resolution institutions or permanent offices set up in Hong Kong by other arbitral institutions and which satisfy the criteria prescribed by the Hong Kong Government (such as the number of arbitration cases and the amount in dispute, etc.).
The list of such institutions or permanent offices is subject to confirmation by the Hong Kong Government (Department of Justice) and the Mainland Supreme People's Court, and would depend on the circumstances and operational considerations. The list currently includes the Hong Kong International Arbitration Centre (HKIAC), China International Economic and Trade Arbitration Commission (CIETAC) Hong Kong Arbitration Center, International Court of Arbitration of the International Chamber of Commerce (ICC) – Asia Office, Hong Kong Maritime Arbitration Group (HKMAG), South China International Arbitration Center (HK), and eBRAM International Online Dispute Resolution Centre.
Applications should be submitted to the relevant arbitration institution or permanent office, which will then forward the application to the relevant Mainland Intermediate People's Court, depending on where a party is domiciled or the property or evidence is located. In more urgent cases, applications can be submitted directly to the relevant Mainland Intermediate People's Court.
For years, parties in Mainland arbitral proceedings have been able to apply to the Hong Kong High Court under the Hong Kong Arbitration Ordinance (Cap. 609) and High Court Ordinance (Cap. 4) for interim measures in aid of those proceedings. Therefore, the Arrangement provides a degree of reciprocity with respect to granting interim measures. The Arrangement should have the effect of rendering Hong Kong a more attractive choice as the seat of arbitration for agreements with a Mainland connection.
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