With the continuous advancement and deepening of China's "the belt and road initiative" cooperation strategy, based on the differences in legal culture between different countries and regions and the consideration of avoiding legal conflicts in different judicial regions, more and more Chinese enterprises began to choose international arbitration as the way of dispute settlement in their commercial cooperation with overseas enterprises. Among them, Hong Kong attracts a large number of Chinese and foreign enterprises to choose it as the arbitration venue for cross-border business dispute resolution, by virtue of its unique political and geographical advantages, sound international arbitration legal system and institutions, legal system and cultural background of common law system, and relatively advanced judicial assistance and enforcement system between the mainland and Hong Kong. However, compared with domestic arbitration procedures, international arbitration procedures are more cumbersome and complex, and the corresponding time and economic costs are relatively high. At the same time, it involves the recognition and enforcement of awards across judicial regions. In order to promote the settlement of cases or guarantee the final enforcement of awards, the use of interim measures in international arbitration is becoming more frequent and extensive, and it can often achieve twice the result with half the effort. In Hong Kong arbitration cases, it is very important to grasp and apply interim measures in time for safeguarding the rights and interests of one party, ensuring the effective conduct of arbitration proceedings and the implementation of the final award. Based on the practical experience of our team in Hong Kong arbitration cases, this essay will make a brief analysis of the interim measures procedures in Hong Kong arbitration from the following aspects.
I. Types of Interim Measures for Arbitration in Hong Kong
In Hong Kong arbitration cases, interim measures refer to temporary orders or rulings that the arbitral tribunal temporarily instructs one party to act or not to act before the final award of disputes is made upon the application of one party. According to Article 35 of the Arbitration Ordinance of Hong Kong, interim measures mainly fall into the following four categories:
(a) Maintain or restore the status quo pending determination of the dispute;
(b) Take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself;
(c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or
(d) Preserve evidence that may be relevant and material to the resolution of the dispute.
Therefore, the interim measures in Hong Kong arbitration include injunctions, property preservation measures and evidence preservation measures, etc.
In practice, the rights and interests of the requesting party may be infringed by a third party. Because of the relativity of the arbitration agreement, the arbitral tribunal cannot issue temporary measures against third parties other than the parties to the case, which greatly limits the effectiveness of temporary measures. In this regard, it is more advantageous to apply to Hong Kong courts for temporary measures. Successful cases have confirmed that Hong Kong courts can assist in arbitration to award charbra injunction, and the target can include third parties other than the parties to the case.
II. the Requesting Time of Temporary Measures
In view of the urgency of interim measures, interim measures are usually put forward at the first Case Management Conference(“CMC”). If in emergency, it can even be raised before the formation of the arbitration tribunal. Then the arbitration institution will apply the emergency arbitration procedure to appoint a temporary emergency arbitrator to hear whether to issue the interim measures.
If the requesting party wants to successfully obtain the grant of interim measures, he/she needs to prove that the settlement of the matters involved cannot wait until the final ruling of the dispute is made. In other words, it is necessary to prove the urgency of the matter involved. Therefore, the requesting party for temporary measures should request as early as possible after the arbitration procedure is initiated. In the procedure of interim measures, one of the common defenses of the opposing party is the time of requesting. If the requesting party fails to request it at an early stage of the arbitration procedure without reasonable cause, such as after receiving the application for arbitration or in its defense or reply, the requesting party's claim on urgency will be difficult to establish, which is not conducive to obtaining the grant of the arbitration tribunal.
However, at present, delay does not mean absolutely no chance of obtaining the interim measures in practice. The key is to judge whether the requesting party's delay will lead to unfair and unreasonable granting of the interim measures, affect the other party's interests (cause prejudice) and whether it is an abuse of the interim measures procedure.
III. the Conditions for Granting the Interim Measures
Usually, the requesting party should clearly state in writing what the requested interim measures are, what the rights are sought to protect, and the relevant case background. When examining the request for interim measures, the arbitral tribunal will first consider whether the arbitral tribunal has the jurisdiction to hear disputes related to interim measures and make corresponding decisions on the interim measures according to the arbitration agreement and relevant laws and regulations.
根據香港《仲裁條例》第 35、36條 （其內容直接援引《聯合國國際貿易法委員會國際商業仲裁示范法》（UNCITRAL Rules）第17 、17A條），在香港仲裁案件中，仲裁庭有權審理并授予臨時措施。
According to Articles 35 and 36 of the Arbitration Ordinance of Hong Kong (which directly refer to Articles 17 and 17A of UNCITRAL Rules), in Hong Kong arbitration cases, the arbitral tribunal has the jurisdiction to hear and grant interim measures.
In addition to jurisdiction, the conditions for the arbitral tribunal to grant interim measures mainly include the following three points:
(a) Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered; and
(b) Such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted;
(c) There is a reasonable possibility that the requesting party will succeed on the merits of the claim.
也即Risk of irreparable harm、Proportionality、Prima facie establishment of case on the merits。此為一般的國際仲裁臨時措施規則，得到了許多國家的法律認可，并被吸收進UNCITRAL Rules中。
That is, Risk of irreparable harm、Proportionality、Prima facie establishment of case on the merits. This is a general rule for interim measures in international arbitration, which has been legally recognized by many countries and absorbed into UNCITRAL Rules.
Among them, the third point is worthy of attention, that is, the arbitral tribunal's judgment on the possibility of the requesting party’s winning the case. The request for interim measures is generally at the early stage of the case procedure, at which time both parties have not yet fully proved and defended. Although security is not a necessary prerequisite under Hong Kong law, the arbitral tribunal will usually require the requesting party to provide. Meanwhile if the requesting party's claim and the evidence provided cannot make a prima facie of the case, the arbitral tribunal may not grant the interim measures, or decide to make rulings after both parties have fully proved and defended. Although article 23.4 of the 2018 Administered Arbitration Rules of Hong Kong International Arbitration Center stipulates that "…The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination", in practice, if the interim measures can be effectively utilized and the interim measures is granted, both parties will have a relatively clear prediction of the final result of the case, so it can exert effective influence on the opposing party to promote the early settlement of the case. This is why it is of great significance to apply to the arbitral tribunal for a temporary measure in the arbitration proceedings in Hong Kong.
Also, the enforceability and effectiveness of interim measures, whether the parties requested for interim measures in good faith, etc. are also factors considered by the arbitral tribunal.
IV. Enforcement of Interim measures
In Hong Kong arbitration proceedings, the arbitral tribunal has no right to directly enforce the interim measures granted by it, and the order or award must be submitted to the court of the place of enforcement. In practice, most arbitration cases in Hong Kong are executed in Hong Kong courts or mainland courts. Hong Kong courts can enforce the interim measures in accordance with the relevant provisions of the Arbitration Ordinance of Hong Kong. While mainland courts will enforce Hong Kong arbitration awards if they do not fall under the circumstances stipulated in Article 7 of the arbitral award arrangement according to the Supreme Court's Arrangement on Mutual Enforcement of Arbitration Awards between the Mainland and Hong Kong Special Administrative Region ("the arbitral award arrangement"). However, whether the arbitral award includes the interim measures is controversial, which needs further clarification and improvement of the rules.
In addition to requesting interim measures to the arbitral tribunal of the case, according to the Hong Kong-Mainland Arrangement on Interim Measures (“Arrangement”), the courts in mainland can provide assistance for interim measures to arbitration parties in Hong Kong. Before the final arbitration award is made, the parties to the arbitration proceedings in Hong Kong may refer to the Civil Procedure Law of the People's Republic of China, the Arbitration Law of the People's Republic of China and relevant judicial interpretations to apply to the Intermediate People's Court of PRC (“IPCs”) where the respondent has his domicile, property or evidence. At this time, the trial basis for the preservation ruling made by the IPCs is the relevant laws and regulations of the PRC. According to the latest statistics of the Hong Kong International Arbitration Center (HKIAC), to date, HKIAC has processed 37 applications made to the PRC courts for interim measures, among which 23 applications were submitted to the IPCs by the requesting party directly and 14 were submitted by HKIAC to the IPCs upon their request. Of the 24 decisions ruled by IPCs, 22 granted the applications for preservation of assets upon the requesting party’s provision of security and two rejected such applications. The total value of assets preserved amounts to RMB 10 billion.
The rational use of interim measures in Hong Kong arbitration proceedings can not only effectively safeguard the legitimate rights and interests of one party from the ongoing infringement of rights, potential property transfer or destroying evidence, but also exert effective pressure and influence on the opposing party, so as to promote the case to achieve the expected effect of the requesting party. It can also save a lot of time and economic costs, ensure the case to be fully executed and then twice as much can be accomplished with half the effort.