Arbitration interim measures: Mainland-HK co-ordination (part 2)

On 2 April 2019, the Supreme People’s Court and the Department of Justice of the Government of the Hong Kong Special Administrative Region executed 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. In the previous issue, the author discussed such issues as the scope of the interim measures, the definition of “Hong Kong arbitral proceedings”, and which mainland courts have jurisdiction. This article focuses on the materials and security required when applying for interim measures in actual practice, and the relief in respect of such interim measures.

Applying to a mainland court

Article 4 of the arrangement specifies that an applicant applying to a people’s court of the mainland for interim measures shall submit the following materials:

(1) The application for interim measure;

(2) The arbitration agreement;

(3) Documents of identity. Where the applicant is a natural person, a copy of his/her identity card is to be submitted; where the applicant is a legal person or an organization that is not a legal person, copies of its certificate of incorporation or registration and the identity card of its legal representative or responsible person are to be submitted;

(4) Where a party makes an application for interim measures after the relevant institution or permanent office has accepted the arbitration case, the request for arbitration should set out the main claim of the arbitration and the facts and justifications on which the claim is based, together with the relevant evidential materials, as well as a letter from the relevant institution or permanent office certifying its acceptance of the relevant arbitration case; and

(5) Any other materials required by the people’s court of the mainland.

Where a document of identity is issued outside the mainland, it shall be certified in accordance with the provisions of the relevant laws of the mainland. Where a document submitted to a people’s court of the mainland is not in the Chinese language, the applicant shall submit an accurate Chinese translation.

Article 5 of the arrangement specifies that the application for interim measures shall specify the following:

(1) Particulars of the parties. These include: Where the party is a natural person, his/her name, address, particulars of identity document(s), means of contact, etc.; and where the party is a legal person or an organization that is not a legal person, its name, address as well as the name, position, address, particulars of identity document, means of contact, etc., of its legal representative or principal responsible person;

(2) Details of the application, including the amount applied to be preserved, the particulars of the conduct applied to be preserved, and the time period, etc.;

(3) The facts and justifications on which the application is based, together with the relevant evidence, including an explanation of the urgency of the circumstances, so that if interim measures are not taken immediately the legitimate rights and interests of the applicant may suffer irreparable damage, or the enforcement of the arbitral award may become difficult;

(4) Clear particulars of the property and evidence to be preserved, or concrete threads that may lead to a train of inquiry;

(5) Information about the property on the mainland to be used as security or certification of financial standing;

(6) Whether any application under this arrangement has been made in any other court, relevant institution or permanent office, and the status of such application; and

(7) Any other matters as may be required to be specified.

The requirements of the arrangement in respect of the materials required to apply to a mainland court for interim measures and the contents of such application are essentially identical to the related requirements in the Provisions of the Supreme People’s Court on Several Issues Concerning the Handling of Property Preservation Cases by People’s Courts. Particular attention needs to be paid to whether the applicant’s explanation of the necessity of the interim measures is reasonable and also be supported by basic evidence. Additionally, the clues to the property and evidence need to be concrete and specific, and avoid ambiguity.