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In a recent international arbitration case involving a technology development and service dispute administered by the Beijing Arbitration Commission/Beijing International Arbitration Court (BAC/BIAC), the arbitral tribunal issued an interim measure decision based on the claimant¡¯s application.

This decision was subsequently recognised and enforced by Beijing Fourth Intermediate People¡¯s Court, becoming the first case of a mainland Chinese court upholding and enforcing an interim measure issued by an arbitral tribunal.

This milestone highlights the proactive efforts of the Beijing judiciary to integrate litigation with arbitration, reflecting a collective commitment to advancing Beijing as a global hub for international commercial arbitration.

Interim measures internationally

Interim measures in international arbitration refer to temporary, mandatory directives issued by an arbitral tribunal or a court at a party¡¯s request to safeguard the arbitration proceedings and ensure effective enforceability of the arbitration award. These measures can involve assets preservation, evidence protection or behavioural restrictions on the opposing party.

In international practice, the authority of arbitral tribunals to grant interim measures is widely accepted. For instance, the UNCITRAL Model Law on International Commercial Arbitration stipulates that an arbitral tribunal may, on the application of a party, issue an interim measure decision, which can then be enforced by a court. The advantage of tribunal-issued interim measures, rather than a court, lies in its familiarity with the dispute, allowing for swift and well-informed decisions.

However, in China, the Arbitration Law and Civil Procedure Law traditionally reserve the power to grant preservation measures exclusively for courts, without explicitly authorising arbitral tribunals to issue interim measures. As a result, arbitration institutions in China have historically played a limited role in preservation matters, primarily acting as intermediaries that issue property preservation letters and forward preservation materials to courts.

BAC/BIAC¡¯s pioneering role

As early as 2015, the BAC/BIAC Arbitration Rules took the lead by incorporating provisions on interim measures under the special section for international commercial arbitration. Article 62 of the rules, titled ¡°Interim Measures¡±, stipulates that ¡°at the request of the parties, the arbitral tribunal may order any interim measures it deems appropriate in accordance with the applicable law¡±.

Additionally, article 63 introduces provisions for emergency arbitrators, stating that ¡°before the constitution of the arbitral tribunal, any party that wishes to apply for interim measures may submit a written application to the BAC for the appointment of an emergency arbitrator in accordance with the applicable law¡±.

These amendments aim to align Chinese arbitration rules with international practices and address the growing demand for cross-border preservation measures. Since then, as of 6 December 2024, the BAC/BIAC has accepted eight applications for interim measures, five of which were decided by emergency arbitrators and three by arbitral tribunals. All of these cases were successfully recognised and enforced by foreign courts.

Breakthrough case

In this landmark case, after receiving the claimant¡¯s application for interim measures, the arbitral tribunal promptly scheduled a pre-hearing conference to assess the legitimacy, necessity, proportionality and enforceability of the interim measures. Both parties were given ample opportunity to present their opinions.

Additionally, before the first hearing, the tribunal made pre-hearing arrangements, such as evidence preservation and supplemental submissions, based on the parties¡¯ schedules, to ensure the smooth progress of the arbitration proceedings. Ultimately, the tribunal¡¯s interim measure decision was recognised and enforced by the Beijing court. This success was driven by two main factors:

• The tribunal¡¯s in-depth understanding of the case facts and evidence, as well as the parties¡¯ co-operation and enforcement capabilities, which allowed it to articulate the legitimacy, necessity, proportionality and enforceability of the interim measures in detail; and
• The proactive support of the Beijing Fourth Intermediate People¡¯s Court in creating a favourable judicial environment, enhancing judicial support for the development of Beijing¡¯s international commercial arbitration centre.

The implications

As the first case nationwide where an arbitral tribunal made an interim measure recognised by a domestic court, this precedent not only provides practical experience for aligning Beijing¡¯s arbitration framework with advanced international standards and practices. It also breaks away from the traditional model where parties apply directly to courts for property preservation, with arbitration institutions merely forwarding applications.

Compared to the traditional approach of direct court application, having the arbitral tribunal issue the interim measure before court enforcement offers several advantages:

• The arbitral tribunal¡¯s comprehensive understanding of the case and the parties facilitates rational evaluation and swift responses, enhancing the reasonableness and accuracy of the interim measures;
• The tribunal¡¯s decision allows both parties to provide reasonable statements, increasing the respondent¡¯s willingness to co-operate and facilitating the case¡¯s progress; and
• The tribunal¡¯s decision can serve as a key reference for the court¡¯s property preservation ruling, streamlining the preservation process and providing stronger safeguards for the parties involved.

In conclusion, the successful enforcement of this arbitral tribunal¡¯s interim measure marks a pivotal advancement in China¡¯s arbitration regime. By strengthening the role of tribunals in issuing enforceable interim measures, Beijing is enhancing its arbitration-friendly legal environment and reinforcing its position as an emerging international commercial arbitration hub.

This breakthrough is expected to attract more parties to choose Beijing as their arbitration venue, further solidifying the city as an international commercial arbitration centre.