Update On Connecting Hong Kong Arbitrations To Mainland Interim Measures – Putting The New Arrangement Into Practice.

Legal News & Analysis - Asia Pacific - Hong Kong - Dispute Resolution

18 February, 2020

 

In our article dated 5th October 2019, we introduced the newly in force “Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the HKSAR” (the “Arrangement”). 

 

The Hong Kong International Arbitration Centre (“HKIAC”)  recently published very helpful guidance and timely updates regarding the Arrangement.  The key highlights of the updates are:

 

  • Since the Arrangement has come into force and up to mid-December 2019, HKIAC has received eleven applications for a letter of acceptance under the Arrangement.
  • All eleven applications were made in ongoing arbitrations administered by the HKIAC’s arbitration rules.
  • Of the eleven applications, ten were made for orders to preserve assets and one was for an order to preserve evidence.  All were made ex parte.

 

In addition to a collection of useful references (including the templates published by The Supreme People’s Court of the PRC (“SPC”) for use by the applicant or the qualified arbitration institutions), the HKIAC also set out its own procedures and a list of required documents for the parties to apply for a letter of acceptance of the arbitration (the “Letter”) before and after the HKIAC accepts the arbitration. 

 

The Letter is required to be submitted to the relevant Intermediate People’s Court (“IPC”) under Articles 3 and 4(4) of the Arrangement for the purpose of the application. 

 

The key highlights of the HKIAC’s procedures are:

 

  1. The application for the Letter itself is free of charge, but the HKIAC reserves its rights to charge for additional assistance under the Arrangement.
  2. The Letter will only be communicated to the applicant unless the applicant requests otherwise, and/or to the IPC if requested by the IPC.
  3. The Letter may be submitted by the applicant to the IPC directly in accordance with the SPC’s interpretation and application dated 26th September 2019.

 

When applying for the Letter, the applicant must submit the following documents:

 

  • A request for a Letter of Acceptance;
  • A copy of the application to the IPC including any supporting materials;
  • A copy of the IPC’s decision on the application if it was made before the HKIAC accepts the arbitration;
  • An indication as to whether any other party to the arbitration should be copied on communications in relation to the request; and
  • Any other documents or information required by the HKIAC.

 

The main differences in relation to applications before and after the HKIAC accepts the arbitration are:

 

  1. Before the HKIAC accepts the arbitration, the applicant shall submit the application for interim measures to the relevant IPC directly.  If the application is granted, the applicant must commence an arbitration at the HKIAC, and apply to the HKIAC for the Letter and submit the  Letter to the IPC within 30 days.
  2. After the HKIAC accepts the arbitration, the application for interim measures shall be transferred by the HKIAC, or the applicant may submit such application together with the Letter to the IPC directly. 

 

Gall has, to date, assisted one client in making an application for the Letter, and appreciates the HKIAC’s efficiency and helpful guidance which smoothened the application process. 

 

 

For further information, please contact:

 

Nick Gall, Senior Partner, Gall

nickgall@gallhk.com