Posted by on 10. Dezember 2020

In Hong Kong, where arbitration law has largely adopted the UNCLOS model law, the two mechanisms mentioned above are available (sections 35 and 45 of the Hong Kong Arbitration Order). These mechanisms were not available in mainland China (see the previous commentary on the blog from the perspective of mainland China: Part I and Part II). The agreement allows parties in Hong Kong to obtain Hong Kong arbitration proceedings, managed by HKIAC, CIETAC (Hong Kong), ICC (Asia Office) or other eligible arbitration bodies, to obtain an injunction from the Chinese courts that will be enforceable in mainland China. On October 1, 2019, the pioneering agreement between the Hong Kong government and the Supreme People`s Court of China on interim measures for arbitration („arrangement“) will come into force.1 Two issues fall within the „who“ issue. The first is who the parties to the arbitration are: the agreement applies only to commercial arbitrations between parties with the same status. This excludes investor-state arbitration (see Section II (II)2 of the interpretation and application of the Supreme People`s Court on judicial assistance in the event of interim judicial measures in support of arbitration by the mainland courts of the Hong Kong Special Administrative Region, published on 26 September 2019 in the Volksgericht Daily, courtesy of the English translation available here) (the interpretation SPC)). Their arbitration options, based in China, remain unchanged, with Hong Kong courts already able to grant interim measures to China (and other foreign seats) before the agreement enters into force. As noted earlier („First Order issued under Interim Measures arrangement between China Mainland and Hong Kong SAR“), the agreement is an important development and has made Hong Kong an attractive single seat for parties doing business with China Mainland units anywhere in the world. Hong Kong is the only place of arbitration outside mainland China to have a direct mechanism by which parties can apply for interim measures from continental courts, including asset retention orders, evidence and conservation measures. Arbitration proceedings based in Hong Kong (Article 2) are only eligible for those managed by establishments certified by both jurisdictions.