CHINA Trends and Developments Contributed by: Ernest Yang, Xiaoshan Chen, Han Ma and Dewey Song, DLA Piper UK LLP
The parties also agreed on Pudong New District as the hearing venue, and jointly selected a maritime expert to serve as the sole arbitrator in this case. The case demonstrates the value that foreign companies place in the PRC’s ad hoc arbitration mechanism. The First Case of an Evidence Collection Order Issued by an Arbitral Tribunal in International Arbitration Being Enforced by a PRC Court On 14 May 2025, the Shanghai International Com - mercial Court issued an investigation order to assist in evidence-taking for an international arbitration case administered by SHIAC. This marks the first instance of court-ordered evidence collection in aid of an inter - national arbitration in the PRC. The case involved a dispute arising out of a cross-bor - der data service contract between a Hong Kong com - pany, a foreign company and a domestic company from Jiangxi Province. The core of the dispute was to determine whether the contract was formed between the parties, which requires the tribunal to verify the identity of the persons representing the parties in the transaction. Since the identity of the representatives could be verified only through their WeChat accounts, the parties were unable to verify the account registra - tion information on their own. Therefore, they submit - ted an application for evidence collection to the arbitral tribunal. The tribunal then issued a letter requesting co-operation from a third party, but the request was rejected. Given these circumstances, the arbitral tri - bunal, acting on the parties’ application, issued an interim measure order approving the request for court assistance in evidence collection. SHIAC subsequent - ly forwarded the tribunal’s decision to the Shanghai International Commercial Court. After reviewing the interim measure order, the Shang - hai International Commercial Court granted the inves - tigation order based on the following considerations. • Relevance of the requested evidence: The court determined that the evidence sought was “neces - sary” for factual determination in the arbitration. • Reasonable efforts: The court found that the tribu - nal and the parties had made reasonable attempts to obtain the evidence independently, but their attempts were unsuccessful.
• Due process: The court assessed the interim measure in light of applicable SHIAC arbitration rules and best practices of international commer - cial arbitration. Notably, the court placed significant weight on the tribunal’s reasoning in support of evidence-taking. While an investigation order had been previously granted in aid of a domestic arbitration, also seat - ed in Shanghai, in December 2023, this case sets a precedent where an investigation order was granted in support of an international arbitration seated in Mainland China. Since then, an increasing number of courts in not only Shanghai but also other cities, such as Zhuhai and Jiangmen, have granted similar investigation orders in cross-jurisdiction arbitrations. These developments reflect a commendable trend of judicial support for arbitration and demonstrate the courts’ commitment to facilitating efficient and effec - tive arbitration. On the other hand, it is notable that the cases that received support from the PRC courts were all admin - istered by domestic PRC arbitration institutions, and it remains to be seen whether the use of an investigation order will extend to arbitrations seated in Mainland China but administered under the rules of foreign arbi - tration institutions. The First Case of Interim Measures Granted by an Arbitral Tribunal Being Enforced by a PRC Court In October 2024, the PRC saw its first case where an arbitral tribunal’s interim measures were granted and subsequently preserved and executed by a court. This case involved a cross-border dispute over technology development and services, and was accepted by the Beijing Arbitration Commission (BAC). At the request of the claimant, the arbitral tribunal made an interim measures decision, which was sub - sequently preserved and executed by the Fourth Inter - mediate People’s Court of Beijing. This case marks the first instance in the PRC where an arbitral tribunal’s interim measures decision was enforced by a court. This development sends a strong signal of support for international commercial arbitration and signifies the deepening of an arbitration-friendly judicial envi - ronment.
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