CIETAC's 2015 Arbitration Rules analysed

Almost three years after the most recent amendment of its arbitration rules in 2012, the China International Economic and Trade Arbitration Commission (CIETAC), China's premier arbitration institution, has introduced further innovations. Entering into force on January 1 2015, the new CIETAC Arbitration Rules contain revisions to 20 articles and include several procedural advances that firmly align CIETAC with the latest trends in international arbitration. These include an emergency arbitrator mechanism as well as more detailed procedures for the consolidation of arbitral proceedings and the joinder of additional parties. The increased flexibility offered under the New Rules underlines CIETAC's continuing efforts to ensure that its arbitral procedures keep pace with changes in the international arbitration landscape.

Emergency arbitrator mechanism

First implemented by the Stockholm Chamber of Commerce (SCC), emergency arbitration procedures have been adopted by almost all of the major international arbitration institutions in recent years, including the Singapore International Arbitration Centre (SIAC), the Hong Kong International Arbitration Commission (HKIAC) and the International Chamber of Commerce (ICC). Broadly speaking, emergency arbitrator procedures enable the parties to an arbitration agreement to seek urgent interim relief before the constitution of the formal tribunal for the main proceedings, which significantly reduces the time required for the parties to obtain relief. The most common forms of interim relief sought are: interim conservatory orders with respect to important assets and evidence; and orders for injunctive relief requesting that a party take or refrain from taking certain actions. In practice, interim relief of these kinds is generally only granted in circumstances where there is an immediate risk of irreparable damage to, or loss of, the relevant assets or evidence.

Although PRC law is silent on whether an arbitral tribunal has the power to order interim relief, CIETAC's 2012 Arbitration Rules for the first time expressly empowered CIETAC tribunals to grant any interim measures deemed “necessary and proper” in support of an arbitration. The new Rules, following a strong trend in international arbitration, go a step further in allowing the parties to apply for interim relief from an emergency arbitrator before the constitution of the tribunal for the main proceedings and authorising the emergency arbitrator to order urgent interim relief as deemed necessary or appropriate in the circumstances.

There remains some uncertainty as to the extent to which the emergency arbitrator procedures will be available in arbitrations seated in mainland China. Reflecting the relevant provisions of the PRC Civil Procedure Law, Article 23.1 of CIETAC's Arbitration Rules clearly states that, where an applicant seeks interim relief in the form of “conservatory measures” with respect to assets or evidence, CIETAC is required to refer any such application to the Chinese courts. The Rules appear to exclude the possibility of a party to an arbitration agreement governed by PRC law availing itself of the emergency arbitrator mechanism in order to obtain conservatory measures. It is less clear whether a party seeking injunctive relief in the same circumstances would be permitted to use the emergency arbitrator mechanism. Practitioners in China would therefore benefit from a clearer statement of the position under PRC law, whether in the form of a legislative amendment or a binding judicial opinion.