CHINA Law and Practice Contributed by: Peibing Qi, Na Gao and Shanshan Heng, Fangda Partners
6. Interim Remedies 6.1 Availability of Interim Relief
Other Types of Insurance Other types of litigation and arbitration expense insur- ance – such as case acceptance fee insurance and insurance products covering mediation and other ADR mechanisms – are currently offered by only a limited number of insurers in China and remain relatively undeveloped. 5.5 Costs In China, the recoverability of dispute resolution costs depends on the category of costs involved. • Court filing fees – these are typically borne by the losing party, or apportioned among the parties based on the outcome of the ruling. • Attorney’s fees – in litigation, courts generally do not award attorney’s fees unless expressly provid- ed by law (such as in intellectual property infringe- ment cases or cases involving online infringement of personal rights) or expressly agreed upon in a contract. In arbitration, tribunals often award the prevailing party its reasonable and actual attorney’s fees. • Preservation fees and expert witness fees – these are generally borne by the losing party, or appor- tioned among the parties based on the outcome of the proceedings. 5.6 Assessment of Costs Courts typically consider the following factors when allocating costs. • Outcome of the case – the degree of success is the primary factor in determining the allocation of costs. • Conduct of the parties – whether either party has acted in bad faith, including deliberate delay of proceedings or abuse of procedural rights. • Reasonableness and necessity of costs – whether attorney’s fees are reasonable in light of local fee standards, and whether costs for preservation measures or judicial appraisals were truly neces- sary.
The principal types of interim relief available from PRC courts include three categories: property preservation, conduct preservation and evidence preservation. See 2.6 Interim Relief for details. 6.2 Interim Relief to Support Arbitration and ADR Courts will grant interim relief in support of arbitra- tion. Under PRC law, parties may, either before com- mencing arbitration or during arbitral proceedings, submit preservation applications to the court through the arbitral institution. If the court is satisfied that the relevant conditions are met, it will grant the requested preservation measures in accordance with the law. Existing legislation has no explicit provisions on inter- im relief in ADR mechanisms. 6.3 Timing of Applications for Interim Relief Pre-Litigation/Pre-Arbitration In urgent circumstances where failure to immediately seek preservation would cause irreparable harm to its lawful interests, a party may file a preservation appli- cation before instituting litigation or applying for arbi- tration. However, if the applicant fails to file a lawsuit or apply for arbitration within 30 days after the court has adopted preservation measures, the court shall lift the preservation. In practice, for pre-litigation or pre-arbitration preservation, courts typically require the applicant to submit evidence demonstrating the urgency and necessity of preservation, such as proof that the respondent is transferring assets or evading debts. During Litigation/Arbitration After litigation proceedings have commenced, the applicant may submit the preservation application to the court, usually concurrently with the filing of the case acceptance documents. In arbitration proceed- ings, the applicant must submit the preservation appli- cation to the arbitral institution, which will then for- ward it to the court; the court does not directly accept preservation applications submitted by applicants in arbitration cases.
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