Under existing Hong Kong legislation, any parties to arbitral proceedings in any places may apply to the Court of First Instance (“CFI”) of the High Court of the HKSAR for interim measures in relation to the arbitral proceedings. (Please refer to: sections 21L(1) and 21M(1) of the High Court Ordinance (Cap. 4), and sections 45(2) and 60(1) of the Arbitration Ordinance (Cap. 609).)
Article 6 of the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (“the Arrangement”), which was signed on 2 April 2019 and came into effect on 1 October 2019, provides that “[b]efore the arbitral award is made, a party to arbitral proceedings administered by a Mainland arbitral institution may, pursuant to the Arbitration Ordinance and the High Court Ordinance, apply to the High Court of the HKSAR for interim measure.” Article 7 of the Arrangement provides that “[a] party applying to the court of the HKSAR for interim measure” should submit the application “in accordance with the requirements of the relevant laws of the HKSAR.”
The above provisions aim to clarify the current legal position in Hong Kong. They do not amend or supplement any laws of Hong Kong.
A person who wishes to apply to the CFI of the High Court of Hong Kong for an interim measure in relation to any arbitral proceedings which have been or are to be commenced in or outside Hong Kong (including the Mainland) must make an application pursuant to the prevailing laws of Hong Kong rather than reliance on a direct quotation of the provisions of the Arrangement. The application must comply with the requirements of relevant legislation and rules of court, including Order 73 of the Rules of the High Court (Cap. 4A) and Practice Direction 11.1 issued by the Judiciary.
In addition, any parties to arbitral proceedings may also apply to the CFI under section 61 of the Arbitration Ordinance (Cap. 609) for enforcement of interim measures granted by arbitral tribunals in or outside Hong Kong. Moreover, under section 22B(1) of the Arbitration Ordinance (Cap. 609), any emergency relief granted, whether in or outside Hong Kong, by an emergency arbitrator under the relevant arbitration rules is enforceable in the same manner as an order or direction of the CFI that has the same effect, but only with the leave of the CFI.
The current version of Hong Kong legislation is available at Hong Kong e-Legislation at https://www.elegislation.gov.hk/
The Practice Directions of the Judiciary is available at https://legalref.judiciary.hk/lrs/common/pd/Practice_Directions.jsp
As the legal adviser to the HKSAR Government, the Department of Justice does not provide legal advice to parties on individual cases. Anyone seeking advice on his/her case should consult a legal practitioner in Hong Kong.