CHINA Law and Practice Contributed by: Tim Yimin Liu, Sybil Xueting Yuan and Cassie Wenjing Li, Global Law Office
the respondent’s domicile, property location or evi - dence location for property preservation, evidence preservation or conduct preservation before the arbi - tral award is made. Likewise, Mainland parties may apply to the Hong Kong High Court for interim meas - ures under the Hong Kong Arbitration Ordinance and High Court Ordinance (under the arrangement effec - tive from 2019 – the Arrangement on Mutual Assis - tance Between the Courts of the Mainland and the Hong Kong Special Administrative Region in Aid of Interim Measures in Aid of Arbitral Proceedings issued by the Supreme People’s Court). According to data from the CIETAC Hong Kong Arbi - tration Center, it has successfully forwarded property preservation applications to multiple courts and mari - time courts in Beijing, Shanghai, Guangdong, Sichuan and Guangxi, all of which were supported. The aver - age preservation amount per case is approximately CNY23.39 million. Mainland China – Macao Since March 2024, a similar arrangement – the Arrange - ment on Mutual Assistance Between the Courts of the Mainland and the Macao Special Administrative Region in Aid of Interim Measures in Aid of Arbitral Proceedings – has been in effect, further extending the scope of cross-border preservation. 6.3 Security for Costs Chinese law does not explicitly grant courts/arbitral tribunal the authority to order one party to provide a security for the opposing party’s costs in arbitration- related proceedings. However, similar effects may be attained through requiring the claimant to pay full arbitration costs in advance. When producing the final arbitral awards, an arbitral tribunal will have the discretion to make adjustment on the bearing of costs, such as order - ing the losing party to reimburse the prevailing party for reasonable expenses incurred in the arbitration, based on the circumstances of the case. In determin - ing whether the costs claimed by the prevailing party are reasonable, the tribunal typically considers factors such as: • the outcome of the arbitration;
• the complexity of the case; • the actual workload of the prevailing party and/or its legal representatives; and • the amount in dispute.
7. Procedure 7.1 Governing Rules
Chinese law does not formally or explicitly provide a rule for determining the law governing arbitral pro - cedure, nor has it adopted the concept of the “seat of arbitration”. However, the concept of the “seat of arbitration” has been recognised in the rules of main - stream arbitration institutions in China and in guidance from the SPC. It is expected to be formally adopted through the Second Draft Amendment. The specific procedures for arbitration are governed by the applicable arbitration rules. 7.2 Procedural Steps The PRC Arbitration Law sets out the following pro - cedural requirements. • Filing of the case – A party initiating arbitration must submit the arbitration agreement, a written application and the necessary copies to the arbi - tration institution. The institution shall decide within five days whether to accept the case. If accepted, it shall serve notice on the parties; if not, it shall notify the applicant and explain the reasons. (See Articles 22 and 24.) • Service of rules and panel – Upon accepting the case, the arbitration institution must, within the time limit prescribed by its rules, serve both parties with the arbitration rules and the panel of arbitra - tors, and deliver a copy of the application to the respondent. The respondent shall submit a state - ment of defence within the prescribed period. Failure to do so does not affect the continuation of the arbitration proceedings. (See Article 25.) • Constitution of tribunal – If the parties fail to agree on the method for constituting the tribunal or fail to appoint arbitrators within the prescribed period, the chairperson of the institution shall make the appointment. The parties shall be notified in writ - ing. (See Articles 32 and 33.)
148 CHAMBERS.COM
Powered by FlippingBook