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

Vivek Jain, Thomas Macey-Dare, Shengnan Jia

• Editore: Informa Law from Routledge
• Anno: 2022
• ISBN:
  9781000579710
• Edizione: 1
• Argomento: Derecho
• Categoria: Derecho mercantil internacional

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.

Part 1
Introduction to the Concepts in the Book and Legal System and Procedural Law of England & Wales and China

Chapter 1 Introduction to Interim Measures in England & Wales and China

DOI: 10.4324/9781003000310-2

Introduction to Interim Measures

Role of Interim Measures within a Civil Procedure System

1.1 A legal system comprising of an appropriate framework encompassing civil procedural rules is essential to manage the expectations of stakeholders with commercial interests. This framework is also essential for ensuring that legal disputes are resolved satisfactorily. The satisfactory resolution of the legal disputes in courts in any jurisdiction will ensure that local and international economies are encouraged, while also ensuring enhanced cross border trading. Therefore, a reliable civil procedure system, in theory, supports the disposal of commercial disputes without full civil trials or without final determination by the courts. As a result, an efficient civil procedure system in any jurisdiction will promote the legislators’ objective of ensuring that legal cases are disposed effectively in its civil/commercial courts.

Interim Measures in England & Wales

1.2 In most developed jurisdictions such as England & Wales, the role of interim remedies within the framework of civil litigation is vital to fulfil the objective of disposing of legal disputes without resorting to full trials. Needless to say, the availability of interim remedies to litigants in England & Wales has ensured that a substantial number of international commercial disputes are resolved in England & Wales. In many respects, over the decades, the jurisdiction of England & Wales has been a pioneering jurisdiction that has introduced novel solutions, such as practical interim remedies for commercial legal disputes. It would not be erroneous to suggest that the availability of the interim remedies in English courts has ensured that England & Wales remain a popular forum in which to resolve international commercial disputes pursuant to Civil Procedural Rules 1998 as revised over the years (hereinafter “CPR”).¹ This book has considered all the amendments to CPR up to December 2020.

1 See Civil Procedural Rules 1998 (SI 1998/3132); refer also to 1.46.

Interim Measures in China

1.3 Conversely, the concept of provisional remedies is relatively very new in China. This is not surprising, taking into account the fact that the civil procedure system in China has no ancient origins.² After the Chinese economic reforms commenced in 1978, the first Civil Procedure Law (for trial implementation) was promulgated in 1982 which included the preservation procedural system to seek provisional measures termed as preservation measures in China. Thereafter, the first actual civil procedure law that was applicable throughout China was promulgated only in 1991, namely, the Civil Procedure Law 1991 (hereinafter referred to as “CPL 1991”).³ CPL 1991 also revised the preservation system for seeking preservation remedies from the Chinese courts.

2 Refer to footnotes 3 and 126 and 1.76–1.105 with regards to the origins and development of civil procedure in China in respect of the provisional remedy in China that is known as preservation measures. 3 Civil Procedure Law, Order 44 of President of PRC on 9 April 1991. The Civil Procedure Law 1991 was adopted on 9 April 1991 at the Fourth Session of the Seventh National People’s Congress of People’s Republic of China. It has been revised many times since 1991, and the major revision to the CPL 1991 was carried out on 31 August 2012. This latest revision with amendments introduced many preservation measures to the civil procedure system; refer to 1.85–1.105 for further details on the evolution of the CPL 1991.

1.4 However, for stakeholders, the CPL 1991 was still not a comprehensive civil procedures system in respect of the preservation system for obtaining the preservation measures. In 2012, for the first time, the CPL 1991 was extensively revised, and these revisions introduced new preservation measures into Chinese civil procedure law.⁴ In the last few years, the revised CPL 1991 was amended marginally but without affecting the preservation system for obtaining preservation measures. These amendments before 2020 will be hereafter referred to as “CPL 1991 (as amended until 2020)”. From the outset, it is important to highlight that the references to Chinese law and articles in this book are English translations of relevant laws that were originally drafted in Mandarin.

4 Decision of the Standing Committee of the National People’s Congress on Revising the “Civil Procedure Law of the People’s Republic of China”, Order No 59 of the President of the People’s Republic of China, promulgated on 31 August 2012, effective from 1 January 2013.

Different Terminologies Used for Interim Measures

1.5 Interim orders are known by different terminologies in different jurisdictions, for example interim measures/interim remedies/provisional measures/preservation orders/conservatory measures /interlocutory measures. In England & Wales, interim measures are popularly known as interim remedies, whilst in China, the interim measures are popularly known as preservation measures.

Interim Measures and Cause of Action

1.6 In most jurisdictions, such as England & Wales, these interim measures are not the cause of action in itself,⁵ but are rather an interim fix as a procedural remedy to maintain the status quo in legal cases until a full civil trial can resolve the issues between the parties. These interim measures also intend to protect the parties from irreparable harms until the all issues including the quantum of damages are resolved between the parties to civil/commercial disputes.

5 In England & Wales, interim measures are procedural remedies and are not considered as a cause of action. Lord Dilplock in Owners of Cargo Lately Laden on Board the Siskina v Distos Compania Naviera SA [1979] AC 210, 256, had said in the context of interim injunction that “The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action”. The cause of action should be one that is recognised in the jurisdiction where the applicant is seeking the interim remedy. However, it should be noted that in the case of Merck Sharp Dohme Corp and Bristol-Myers Squibb Pharmaceuticals Limited v Teva Pharma BV [2013] EWHC 1958, even though there was no breach or infringements of any legal rights of the applicants, there was a fear that wrong would be done to the applicants, and the courts granted the applicants a procedural remedy called injunction quia timet.

1.7 The Chinese courts will also require a proper cause of action that is prescribed under Chinese law for any application in a civil/commercial dispute. However, pursuant to Notice of the Supreme People’s Court on Issuing the Revised Provisions on Causes of Action in Civil Cases and the case Shenzhen Shengkangda Investment Co Ltd and Others v Shenzhen Limingtai Share Investment Fund Co Ltd, the Chinese courts are obligated to accept applications within their case-filing docket system even if these applications cannot highlight proper causes of action.⁶ Although this legal guidance by the Supreme People’s Courts (“SPC”) and the SPC’s case did not mention specifically that it would apply to applications seeking preservation measures, it can still be inferred that a lack of cause of action in such applications will not fundamentally impact on these applications seeking preservation measures.

6 Notice of the Supreme People’s Court on Issuing the Revised Provisions on Causes of Action in Civil Cases (Fa [2011] No 42), the Chinese courts cannot refuse to accept applications on the ground that there is no proper cause of action that has been highlighted in the application; see also, Shenzhen Shengkangda Investment Co Ltd and Others v Shenzhen Limingtai Share Investment Fund Co Ltd (dispute over the infringement) (2018) SPC Civil Final No 281 (Supreme People’s Court, second instance and binding judgment) that was an application of the Notice of the Supreme People’s Court on Issuing the Revised Provisions on Causes of Action in Civil Cases (Fa [2011] No 42).

Delays in Civil/Commercial Litigation and Interim Measures

1.8 In any jurisdiction, the time from the commencement of a civil action until a judgment rendered by a judge will take months and sometimes even more than a year. As a result, in most jurisdictions, the advent of interim measures has gained prominence to maintain the status quo between the parties to civil/commercial disputes. In addition, increasingly during civil/commercial litigation,⁷ sophisticated parties are employing measures to sabotage opponents’ chances of success in civil/commercial litigation. For all purposes, in this book, while discussing interim measures, there is no distinction made between commercial and civil litigation for either jurisdiction. For example, some of the measures employed by the parties could include destroying evidence or even could include browbeating their opponents. At times, these strong-arm tactics exert immense commercial strain on the claimants’ businesses and even can affect the relationship of these claimants with their other contractual parties. At times, defendants may also require similar protections through interim measures. Therefore, the importance of the provisional measures is critical for transnational commercial litigations, and needless to say these litigations are notorious for time delays and uncertainties.⁸ Additionally, in China, during criminal proceedings, at times there are issues of compensation, and therefore in such incidental civil litigation proceedings and/or proceedings involving administrative cases, preservation measures can be applied by the Chinese courts. However, this sub-topic is not discussed as it is beyond the scope of this book.

7 In England & Wales, from the analysis of various case laws, it is suggested that all civil matters, including commercial matters, except criminal matters, could be resolved in civil proceedings. For example see the dicta of Lord Goff in Re State of Norway’s Application (Nos 1 and 2) [1990] 1 AC 723, 806 (Lord Goff). However in China, for ...