Bridging an Access to Justice Gap for International Commercial Dispute Resolution: Recent Developments of Interim Measures in Cross-Border Chinese Arbitration

Abstract

As interim measures in international arbitration have gained prominence in recent decades, the arbitral authority to issue these remedies has been met with increasingly widespread acceptance across different jurisdictions. Legal scholarship on the issue has proliferated over time, yet little ink has been spilled on arbitrator-issued interim measures under Chinese law. With a focus on recent developments, this Article aims to make three contributions. First, from a comparative perspective, it provides a systematic review of arbitral interim measures under Chinese law. In particular, by detailing the institutional constraints Chinese law imposes, this Article demonstrates the practical dilemma of “binding-yet-unenforceable” arbitrator-issued interim measures. Second, this Article analyzes whether a party to a Mainland China-seated arbitration should seek enforcement of arbitral interim measures or instead directly apply to Hong Kong courts for interim measures. As demonstrated in two recent high-profile cases, this avenue may sidestep institutional constraints under Chinese law and expand the under-exploited role for arbitral interim measures in Chinese arbitration, to the extent that enforcement is sought in Hong Kong. Third, against the Mainland’s previous default rules of “no-enforceable-interim-measures” for offshore arbitrations, this Article reviews an important recent institutional innovation that now permits a party in an eligible Hong Kong arbitration to obtain preservation measures from Mainland courts. This change may normalize practice as a manifestation of inter-regional judicial assistance in support of international commercial arbitration. Capable of constructing a new normal for various stakeholders and practitioners alike, these recent developments are instrumental in bridging the access-to-justice gap for cross-border Chinese arbitrations.