Effectuating the Arbitration: Judicial Cooperation and Seeking the Assistance of Offshore Courts for Interim Measures

The New York Convention has been interpreted as favoring the availability of provisional remedies to aid in effectuating a future arbitral award. On April 2, 2019, the Government of the Hong Kong Special Administrative Region and the Supreme People’s Court of the People’s Republic of China entered into an arrangement providing for the mutual assistance of courts in the other jurisdiction in effectuating arbitration.

That announcement can be found here. Specifically, any party to arbitral proceedings in Hong Kong may apply to Chinese courts for measures under Chinese law in support of the arbitration. Likewise, any party to arbitral proceedings in China may apply to Hong Kong courts for measures under Hong Kong law.

This development allows for the application to an offshore judicial body for interim measures to preserve the status quo pending the outcome of the arbitration, including, for example, pre-arbitral relief discussed here. It demonstrates the advance of a policy of judicial cooperation and the mutual assistance of governments in resolving disputes through arbitration. It also recognizes practical business realities: the unique business ties between the two jurisdictions and the Hong Kong International Arbitration Centre as a hub of influence within the region.

The development also connects with the increasing specialization of the international bar around enforcement actions, as the number international arbitrations increases and arbitration centers grow. Currently, for arbitrations seated in China, only courts can adopt interim measures, not arbitrators. The bilateral arrangement suggests that further revisions to Chinese national arbitration law may be on the horizon with the increasing efforts to attract the alternative settlement of disputes to the region.

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