Emergency Relief under the CIETAC Arbitration Rules - Chapter 09 - Interim and Emergency Relief in International Arbitration - International Law Institute Series on International Law, Arbitration and Practice

Author(s):

Yu Jianlong

Page Count:

8 pages

Published:

May, 2015

PDF537.46 KB

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Executive Summary:

Mainland China and CIETAC follow a unique approach to interim

measures in international arbitration. The PRC Arbitration Law of 1994,

which is partly based on the 2006 UNCITRAL Model Law, takes quite a

different approach to interim measures than the Model Law. Interim

measures in PRC arbitration are generally perceived as exclusively courtissued

measures with the PRC following the so-called “traditional” model of

interim measures power allocation between national courts and arbitral

tribunals. The applicant for interim measures submits the application to the

arbitral institution, and then the institution forwards the party's application

to the competent court, i.e., the court where the party against which a

measure is sought is domiciled, or where the evidence or property is located.

There is no provision in the PRC Arbitration Law authorizing an arbitration

commission to review the interim measures application and decide whether

to forward it to the court or not. The court then makes a decision within 48

hours upon receipt of application on an ex parte basis. As for the standard of

review by the court, in practice Chinese courts might adopt different

standards given that the statutory provisions are not clear and consider the

probability of success on the merits and the irreparable harm factors as one

element. Under PRC Arbitration Law, a PRC court may order interim

measures only with regard to arbitrations administered by arbitration

commissions which are locally registered PRC entities, i.e., PRC courts only

render interim orders in support of UNCITRAL arbitrations. The implication

is that where a foreign party is transacting with a PRC business entity whose

assets are located only within mainland China, it is advisable for the foreign

party to opt for UNCITRAL arbitration to protect its rights.

Under PRC Civil Procedure Law, in granting pre-arbitration interim

measures of evidence and property preservation, the court will consider

urgency and irreparable harm factors but not the possibility of success on

the merits, and will require the applicant to post security. After the court

grants and enforces the pre-arbitral measures, the applicant is required to

commence arbitration within 30 days. However, in practice pre-arbitral

interim measures are rarely granted by PRC courts. Furthermore, under

the PRC Civil Procedure Law, the court has the power to grant