CHINA Law and Practice Contributed by: Paul Zhou and Leslie Shen, SGLA Law Firm
ine the existence and validity of an arbitration agree - ment at the outset of litigation and must refer the par - ties to arbitration where a valid agreement is found. 5.6 Jurisdiction Over Third Parties As a general principle, an arbitration agreement and any resulting award bind only the signatories to the agreement. Non-signatory third parties may be bound in limited and narrowly defined circum - stances, including: (i) assignment or novation of the contract (the assignee or novatee is bound by the arbitration clause); (ii) piercing the corporate veil (in cases of abuse of corporate form to evade arbitra - tion); (iii) agency (where the agent had actual or appar - ent authority to bind the principal); and (iv) equitable estoppel (where a non-signatory actively participates in the arbitration and later seeks to avoid the award). Chinese courts apply a strict and restrictive stand - ard for binding non-signatories. The 2025 Arbitration Law does not substantially alter the third-party bind - ing rules, leaving them to be developed through case law and SPC judicial interpretations. Under the 2025 Arbitration Law, interim measures are granted by the people’s courts rather than by the arbi - tral tribunal: under Article 39, a party may apply for property preservation or conduct preservation (orders requiring or prohibiting certain acts), and where a par - ty applies for preservation after the commencement of arbitration, the arbitration institution shall submit the application to the competent people’s court; evi - dence preservation is governed by Article 58. The available types of interim measure include: (i) prop - erty preservation (freezing of bank accounts, seizure of assets); (ii) evidence preservation (preserving docu - ments or things that are at risk of being lost, destroyed or altered); and (iii) conduct preservation (injunctive relief prohibiting or compelling certain acts). The 2025 Arbitration Law does not confer on the arbitral tribu - nal itself the power to order interim measures; such powers exist only at the level of institutional rules (for example, Article 23 (3) of the CIETAC Arbitration Rules 2024, under which the tribunal may, upon a party’s request, order such interim measures as it deems nec - 6. Preliminary and Interim Relief 6.1 Types of Relief
essary or appropriate and may require the requesting party to provide security). Emergency Arbitrator The rules of major institutions (CIETAC Rules 2024, BAC/BIAC Rules 2022, SCIA Rules 2022) provide for the appointment of an emergency arbitrator to grant urgent interim relief prior to the constitution of the arbitral tribunal. The emergency arbitrator’s decision is binding on the parties and enforceable through the people’s court. The emergency arbitrator procedure, initially introduced by major Chinese institutions in or around 2020, addresses the practical problem that urgent relief is often required before the tribunal is for - mally constituted, particularly in cases involving the risk of asset dissipation. 6.2 Role of Courts Although certain institutional rules empower the arbi - tral tribunal to order interim measures, the enforce - ment of such measures requires court involvement. The standard procedure is as follows: (i) the party sub - mits an application for interim measures to the arbitral institution; (ii) the institution reviews the application for compliance with formal requirements and forwards it to the competent Intermediate People’s Court; and (iii) the court reviews the application and renders a deci - sion within a short statutory timeframe (typically five to 15 days for urgent preservation measures). The 2025 Arbitration Law streamlines the procedure, providing that the application may be submitted directly to the court in urgent circumstances, with a copy forwarded to the arbitral institution. This reform reduces delay in urgent cases. The cross-border enforceability of interim measures has been significantly enhanced by judicial assis - tance arrangements between Mainland China and Hong Kong and Macao. Pursuant to the 2019 Main - land–Hong Kong Arrangement, parties to Hong Kong- seated arbitration may apply to competent Mainland courts for property, evidence or conduct preservation. CIETAC Hong Kong Arbitration Center data shows successful property preservation applications to mul - tiple courts, with an average amount of approximately CNY23.39 million per case. A similar Mainland–Macao arrangement entered into force in March 2022.
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