Comparative Analysis of Interim Measures – Interim Remedies (England & Wales) v Preservation Measures (China)

Interim remedies and provisional measures are a critical component of civil/commercial litigation and arbitration. The objective of this book is to set out not just the law and practice in relation to the primary interim remedies and preservation measures available in England & Wales and China, but also to provide the comparative analysis between the two jurisdictions concerning these interim measures. The system for interim remedies in England & Wales is well-established, but preservation measures in China are a work in progress and many differences exist between the two legal systems, both in terms of theory and practice. For example, China does not recognise the general concept of interim measures, if looked at from the English law point of view, though it does have similar concepts of Property preservation, evidence preservation and behaviour preservation. China has recently adopted Chinese Civil Code 2020 and in writing this book the authors have incorporated all the relevant elements from the new Code. There is no equivalent of Practice Directions in China, and this book provides provide much needed clarity on this area, drawing together the law and guidance which is presently scattered across numerous local courts in the different provinces. This is an important book that is likely to have a significant impact on existing scholarship regarding interim remedies in England, Wales and China, and be of interest of all parties involved in cross-border litigation. Its readership will include industry professionals, academics, policy-makers and government officials.

Table of Contents Part 1 - Introduction to the concepts in Book and Legal System and Procedural Law of England & Wales and China Chapter 1: Introduction to Interim Measures in England & Wales and China INTRODUCTION TO INTERIM MEASURES Role of Interim Measures within a Civil Procedural System Interim Measures in England & Wales Interim Measures in China Different Terminologies used for Interim Measures Interim Measures and Cause of Action Delays in Civil/Commercial Litigation & Interim Measures ISSUES OF INTERIM MEASURES IN ARBITRATION Interim Remedies/Preservation Measures in Arbitration Issues as to the Enforceability of Interim Remedies/Preservation Measures granted by Tribunal RELEVANT ECOSYSTEM FOR INTERIM MEASURES Need & Role for Interim Measures in the Current Business Environment Current Business Environment Additional Reasons for granting Interim Measures Utility of Interim Remedies/Preservation Measures DOCTRINES GOVERNING INTERIM MEASURES Fundamental Principles of Interim Measures Judges’ Primary Focus Before Rendering Interim Remedies/Preservation Measures INTERIM REMEDIES IN ENGLAND & WALES Equity, Equitable Remedies and Injunction History of Injunctions Injunctions as an Equitable Remedy General Evolution of Interim Remedies in Modern Era Evolution of Freezing Injunctions Evolution of Interim Injunction Evolution of Search Orders Evolution of other Interim Remedies (including relevant to maritime disputes) Interim Remedies and Arbitration in England & Wales PRESERVATION MEASURES IN CHINA Introduction to Preservation Measures in China Evolution of Civil Procedure Law & Preservation Procedures Evolution of Property Preservation Measures – The First Stage (1949-1982) Evolution of Property Preservation Measures – The Second Stage (1982-2012) Evolution of Behaviour Preservation Measures Maritime Injunctions Evolution of Evidence Preservation Measures Relevant Academic Debates on Evolution of Preservation Measures Evolution of Preservation Measures – The Rapid Pace Stage (2012- Present) SPC’s interpretations and Local Courts’ Guidance documents Preservation Measures and Arbitration in China Closing Remark on Introduction of Preservation Measures in China OTHER ISSUES WITH INTERIM MEASURES Interim Measures as Commercial Litigation Tactics Dispute of facts In Interim Measures & Interim Hearings CONCLUDING REMARKS Reasons for Comparing Interim measures – England & Wales v China Arrangement of Chapters in this Book A Tad of warning for Readers Chapter 2: Legal System and Procedural Law in England & Wales SOURCES OF ENGLISH LAW STATUTORY LAW JUDGE-MADE LAW INTERNATIONAL CONVENTIONS KEY STATUTES ON INTERIM REMEDIES THE CIVIL PROCEDURE RULES (CPR) CIVIL PROCEDURE BASICS TERMINOLOGY: INTERIM, INTERLOCUTORY AND FINAL TERMINOLOGY: TEMPORARY, PERMANENT AND PERPETUAL CPR PART 25: "INTERIM REMEDIES AND SECURITY FOR COSTS" ENGLISH CIVIL COURTS ALLOCATION OF CASES WITHIN THE HIGH COURT POWERS OF JUDGES OF THE HIGH COURT TO GRANT INTERIM REMEDIES COURT OF APPEAL AND UK SUPREME COURT JURISDICTION SERVICE OF ORIGINATING PROCESS (i) Permission not required: service within the UK (ii) Permission not required: service outside the UK (iii) Permission required: 2.81 - 2.86 OBTAINING PERMISSION TO SERVE OUT OF THE JURISDICTION: 2.87 - 2.89 PROCEDURAL STAGE AT WHICH INTERIM REMEDIES CAN BE GRANTED: 2.90 - 2.94 PROCEDURE ON AN INTERLOCUTORY APPLICATION FOR AN INTERIM REMEDY: 2.95 - 2.97 WITHOUT NOTICE APPLICATIONS: 2.98 - 108 FULL AND FRANK DISCLOSURE: 2.109 - 2.117 UNDERTAKINGS: 2.118 - 2.124 COURT’S POWER TO ENFORCE INTERIM REMEDIES AND UNDERTAKINGS: 2.125 - 2.129 Chapter 3: The Legal System and The General Rules for Preservation Measures in China INTRODUCTION The Civil Litigation Procedure System of China SOURCES OF LAW APPLICABLE FOR PRESERVAION MEASURES Legislation Legislation (I): General Laws Legislation (II): Special Laws Regulations Judicial Interpretations and Other Judicial Documents Guiding Case and Reference Case THE CHINESE COURT SYSTEM Overview of The Court System Preservations in The Court System HIERARCHICAL TRIAL SYSTEM TIER SYSTEM IN THE CONTEXT OF PRESERVAITON MEASURES PRESERVATION PROCEDURAL STEPS IN CHINA Meaning of Pre-action Preservation Application Meaning of Post-action Preservation Application General Procedural Steps for Preservation Measures Online Preservation System of the People’s Court Various types of Scenarios in the Context of Preservation Measures JURISDICTION OF COURTS FOR CIVIL PRESERVATION APPLICATIONS Court Tier Jurisdiction for Preservation Applications Tier Jurisdiction of Domestic Cases Tier Jurisdiction of Foreign-related Cases Tier Jurisdiction of Specialised Courts: Exclusive Jurisdiction Territorial Jurisdiction to Consider for Preservation Applications Agreed Jurisdiction Clauses in relation to Preservation Applications Overseas Cases – Chinese Court’s Jurisdiction over Preservation Applications Maritime Court’s Jurisdiction over Preservation Applications for Overseas Cases Choice of Venue if there are two competent Courts Jurisdiction for Preservation Applications after Completion of the First Instance Jurisdiction after Making an Effective Judgment or Award APPLICATION AND ENFORCEMENT OF COURT ORDERS OF MACAU, HONG KONG AND TAIWAN Macau and the Mainland Hong Kong and the Mainland Taiwan and the Mainland FORMAT OF THE PRESERVATION APPLICATIONS Written Format or Others Requirements as to Translation Requirements as to Notarisation and Legalisation Flexible Requirements as to Notarisation and Legalisation in IP Disputes SECURITY FOR APPLICATION OF PRESERVATIONS Overview of Security for Application of Preservations Security for Maritime Preservation Measure Applications Countersecurity of the Respondent Types of Security or Countersecurity Property Security(I): Scope of Security Property Security (II): Nature and Steps of Property Security Property Security (III): Legal Effect of Property Security Cash Security (I): Introduction Cash Security (II): Payment Method Cash Security (III): Nature of Cash Security A letter of guarantee (Credit Guarantee) (I): Introduction A Letter of Guarantee (II): Lack of Unified Rule A Letter of Guarantee (III): Development of Credit Guarantee A Letter of Guarantee (IV): Maritime Law Domain A Letter of Guarantee (V): Online Guarantee Exemptions from Providing Security The Scope of Application of Preservation Security Guidance LEGAL COSTS IN PRESERVATION APPLICATIONS General Legal Costs Insurance Fee for Security of Preservation Lawyer’s Fee The Burden of Legal Costs and Application Fees THE TIME LIMIT FOR RENDERING ORDERS LEGAL REMEDIES AGAINST AN ORDER (I): THE SUBJECT OF REMEDIES Concept of Interested Party and Outside Party LEGAL REMEDIES AGAINST AN ORDER (I) : RECONSIDERATION Reconsideration Appellate Remedy Claims of the Interested Party LEGAL REMEDIES AGAINST A PRESERVATION ORDER (III): RAISING OBJECTION Procedural Remedy of Objection to Enforcement of a Preservation Order Procedural Remedy of Objection to Subject Matter of a Preservation Order SANCTIONS FOR NOT OBEYING PRESERVATION ORDERS Sanctioned Behaviour and Parties Fine and Detention Penalty Criminal Penalty DISCHARGE OF ORDERS General Rules An Applicant’s Liability COMPENSATION: LEGAL REMEDY FROM SUBSTANTIVE LAW PERSPECTIVE General Rules Party Liable to Compensate an Injured Party Difference between Procedural Remedy and Substantive Remedy Annex 1 Annex 2 Part 2 - Interim Measures in Arbitration Chapter 4: Interim Remedies In Support Of Arbitration INTRODUCTION: 4.1 THE NEW YORK CONVENTION: 4.2 - 4.3 PART I OF THE ARBITRATION ACT 1996: 4.4 - 4.8 RELEVANCE OF ENGLISH LAW: 4.9 - 4.13 POWER OF ARBITRAL TRIBUNALS TO GRANT INTERIM REMEDIES: 4.14 - 4.15 ORDERS: 4.16 - 4.17 PROVISIONAL AWARDS: 4.18 - 4.20 LIMITATIONS OF THE POWER OF ARBITRATION TRIBUNALS: 4.21 - 4.26 POWERS OF THE ENGLISH COURT TO GRANT INTERIM REMEDIES IN RELATION TO ARBITRATION: 4.27 SECTION 44 OF THE 1996 ACT: 4.28 - 4.35

Vivek Jain Dr. Capt. Vivek Jain is currently a Director (Marine Services) of a well-renowned firm in Singapore, where he handles and pursues commercial and maritime international arbitrations in various International forums. He also handles large claims on behalf of clients of his firm on various marine insurance products. He has also been appointed as arbitrators on various commercial and maritime disputes and is also a Committee Member of arbitration institutions for number of years. As a result of nature of his work that involves cross-border litigation/arbitration work, he has developed an expertise in Comparative Law backed by pursuing Ph.D. from prestigious CUPL, Beijing in the topic of Comparative Analysis of Court’s Pre-judgment Power in England & Wales and China. He has worked for many years in London, Shanghai, Hong Kong, Singapore in law firm and insurance companies as a lawyer. He has qualified as a Barrister in England & Wales. He is also a Master Mariner (unlimited) UK and have worked on merchant ships including tankers and bulk carriers. He also taught Commercial and Maritime Law in University of Plymouth for a few years and regularly lectures on Comparative Law, Commercial Law & Maritime Law across the globe. Over the years, he has pursued LL.B. (Hons.), LL.M. (Maritime Law) with merit from University of London, B.V.C. (Very Competent) (London), M.B.A. (Norway), PGC in Compliance (Singapore) PGCE (Singapore), B.Sc. (N. Sc.) (India) from a very selective & prestigious T.S. Rajendra College of Nautical Science. He has recently authored a book ‘Common Law v Chinese Law’, and edited a book, Imprints of History, Religions & Revolutions on Law – Perspectives from Prominent Jurisdictions. He would like to be called as a ‘problem solver’ by his clients. Thomas Macey-Dare Thomas Macey-Dare QC is an English commercial barrister and a member of Quadrant Chambers in London. He specialises in shipping, shipbuilding, energy, international trade, insurance and international arbitration. He is recognised as a leading practitioner by the Legal 500 in Commodities and Shipping, and by Chambers & Partners in Shipping & Commodities. He represents shipowners, commodity traders, shipyards, underwriters, salvors, energy companies, banks and other commercial clients, in the Business & Property Courts of England and Wales (Commercial Court, Admiralty Court & Chancery Division), the Court of Appeal, and international commercial arbitrations. He is particularly skilled at handling cases involving complex commercial transactions and technical expert issues. He also specialises in emergency applications for interim relief, including freezing and antisuit injunctions. Tom was educated at Stonyhurst College, the University of Cambridge (BA (Hons) 1990, LLM 1991, MA 1994), Cornell Law School (LLM 1992), and the Inns of Court School of Law. He was called to the Bar of England and Wales in 1994 and appointed Queen’s Counsel in 2018. He was admitted as an attorney in the State of New York in 1995. He is a registered foreign lawyer with the Singapore International Commercial Court and a member of the Middle Temple advocacy training faculty, the Commercial Bar Association and the New York State Bar Association. Tom has written, co-authored and contributed to a number of legal books and articles, including Atkin’s Court Forms, Vol 6(2): Arbitration (Lexis-Nexis Butterworths, 1998-2016), and Marsden & Gault on Collisions at Sea (14th Edn, Sweet & Maxwell, 2016). Shengnan Jia Dr Shengnan Jia is a partner at a well-known Tahota Law Firm (Legal 500) based out of Beijing. She specialises in commercial law and maritime law. Over the years, she has disposed of many cases in the Supreme People’s Court, High courts of different provinces in China and in various International arbitration forums. Dr. Jia holds memberships of professional arbitration forums such as HIAC, ZCIA (China), LMAA (London), CAS (Switzerland), EDAC (Turkey) and had been invited as a Chinese expert witness to submit an Expert Report to LCIA. Dr Jia obtained her PhD degree in Commercial Maritime Law at the City Law School, University of London along with the first LLM in Civil and Commercial Law at Graduate School of Chinese Academy of Social Sciences and the second LLM in Maritime Law at Lund University and World Maritime University, Sweden. She had completed LLB in Law at Beijing Union University. She had taught English contract law and land law as a graduate teaching assistant at the City Law School and also is a professional supervisor at prestigious University CUPL, Beijing, and an adjunct lecturer at Ankara University Turkey. She has contributed chapters to many legal profession books, such as Maritime Law in Motion (Springer), New Trends in Maritime Law: Maritime Liens, Arrest of Ships, Mortgages and Forced Sale (Thomson Reuters). She has also organized a few international commercial law and maritime law conferences