Under the current law in China, the power to grant interim measures (known as "preservation measures") is vested in the courts. A party seeking preservation measures must submit an application to the arbitral institution, not the tribunal, and if the institution is of the view that the application should be allowed, it shall then forward the application to the appropriate court for final decision. A party seeking pre-arbitration preservation measures must submit an application to the appropriate court directly.
On 30 July 2021, the Arbitration Law of the People’s Republic of China (Amended Version) (Draft for Comments) (“Draft Arbitration Law”) was published for public consultation. The Draft Arbitration Law proposes substantive amendments to the current regime concerning interim measures in arbitration and introduces, for the first time, the regime of “emergency arbitrators”.
Under the Draft Arbitration Law, for arbitrations seated in China, arbitral tribunals for both institutional and ad hoc arbitrations are, for the first time, given the power to order interim measures upon application by a party to the arbitration. However, this new rule does not affect a party’s right to apply to the court for preservation measures.
The Draft Arbitration Law also provides that prior to the constitution of the tribunal, the parties may appoint an emergency arbitrator "in accordance with the arbitration rules" to grant interim measures.
In addition, the Draft Arbitration Law provides that a tribunal may issue "behaviour preservation measures" as a form of interim measure. In practice, the Chinese courts have rarely issued such orders to prohibit parties from continuing with foreign actions. It remains to be seen whether tribunals will show a more positive attitude towards issuing the equivalent of an anti-suit injunction order.
We look forward to seeing the final version of the Draft Arbitration Law.
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