Court ordered interim measures to support arbitration

• Published date: 03 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Timothy Loh
• Author: Mr Timothy Loh

Hong Kong courts are empowered by legislation to grant interim measures in support of arbitral proceedings which have been or are to be commenced in or outside Hong Kong. In this article, we explore the scope of these powers and discuss two common types of interim measures which the court may grant. Should you wish to find out more about this topic, please contact one of our dispute resolution lawyers.

Hong Kong courts support arbitration, repeatedly stressing that the courts will respect the choice the parties have made to resolve their disputes through arbitration. One area where Hong Kong courts support the arbitral process lies in the granting of interim measures.

Such interim measures may include orders to:

• maintain or restore the status quo pending determination of the dispute;
• take action that would prevent or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process itself;
• provide a means of preserving assets from which a subsequent award may be satisfied; or
• preserve evidence that may be relevant and material to the resolution of the dispute.

Interim measures can play a critical role in resolving disputes, protecting a claimant's rights before their case has been finally determined. In the absence of effective and enforceable interim measures, a claimant may face the risk of a respondent dissipating assets, destroying evidence or otherwise taking action to prejudice the value of any award which an arbitral tribunal may grant.

Jurisdiction to Grant Interim Measures

The jurisdiction of the Hong Kong courts to grant interim measures to support arbitral proceedings lies exclusively in the Arbitration Ordinance ("AO"). The courts have no inherent jurisdiction to grant such measures except as set out in the AO. The AO provides that a "court should interfere in the arbitration of a dispute only as expressly provided for" in the AO.

Concurrent Jurisdiction of Court and Arbitral Tribunal

Under the AO, the Hong Kong courts exercise jurisdiction to grant interim measures concurrently with any arbitral tribunal which has been constituted. The AO provides:

"It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such a measure."

Similarly, the AO provides:

"The powers [to grant interim measures] may be exercised by the court irrespective of whether or not similar powers may be...