内地与香港的仲裁互助安排——HKIAC的实践与经验
《关于内地与香港特别行政区法院就仲裁程序相互协助保全的安排》已然是香港国际仲裁中心在过去几年里最重要的发展之一。根据《安排》，以香港为仲裁地且由合资格仲裁机构（如香港国际仲裁中心）管理的仲裁程序的任一方可根据《民事诉讼法》、《仲裁法》或任何相关的司法解释向被申请人住所地、财产所在地或证据所在地的中级人民法院申请临时措施。
The Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and the Hong Kong Special Administrative Region has been one of the most important developments for the Hong Kong International Arbitration Centre (HKIAC) in the past year. The arrangement allows for any party to arbitral proceedings seated in Hong Kong and administered by a qualified arbitral institution (such as the HKIAC) to apply to the Intermediate People's Court (IPC) of the place of residence of the party against whom the application is made, or the place where the property or evidence is situated, for interim measures in accordance with the Civil Procedure Law, Arbitration Law, and any relevant judicial interpretations.
对于以香港为仲裁地，由香港国际仲裁中心管理的仲裁程序的双方所提出的申请，香港国际仲裁中心可在中心接受仲裁之前或之后为当事人申请临时措施提供协助。
In relation to applications to the IPC by parties to arbitral proceedings seated in Hong Kong and administered by the HKIAC, the HKIAC may provide assistance to the parties by facilitating any applications for interim measures under the Arrangement before or after the HKIAC accepts the arbitration.
仲裁中心已接受仲裁的，中心可应一方请求开具一份接受函，在中级人民法院提出要求时，且只在法院提出要求时，向请求一方发送该信函复印件。
Where the HKIAC has accepted an arbitration, it may issue a letter of acceptance upon a party's request, and communicate copies of that letter to the requesting party only upon the IPC's request.
如一方要申请接受函，香港国际仲裁中心要求以下材料：
接受函申请；
一份该方拟向中级人民法院提交的申请书复印件，包括任何支持材料（或者，如该方当事人已先向中级人民法院提出申请，一份已提交的申请书及支持材料）；
如该方当事人已在仲裁开始前向中级人民法院提出申请，一份法院决定书的复印件；
说明在发送与此申请事宜相关的信件时是否需要抄送仲裁程序的其他方；以及
仲裁中心要求的任何其它文件或信息。
When a party wants to make a request for a letter of acceptance, the HKIAC requires the following material:
A request for a letter of acceptance;
A copy of the application that the party intends to submit to the IPC, including any supporting material (or if the party has applied to the IPC first, a copy of the application that has been made to the IPC, with supporting material);
If the party has applied to the IPC before starting arbitration, a copy of the IPC's decision on the application;
An indication as to whether any other party to the arbitration should be copied on communications in relation to the request; and
Any other documents or information required by the HKIAC.
在自《安排》于2019年10月1日生效以来，香港国际仲裁中心已收到13份申请。所有13份申请均在仲裁过程中提出，这些仲裁程序的仲裁地在香港，由香港国际仲裁中心管理，按照中心的仲裁规则进行。
Since the entry into force of the Arrangement on 1 October 2019, the HKIAC has received 13 applications under the Arrangement. All 13 applications were made in ongoing arbitrations seated in Hong Kong and administered by the HKIAC under its administered arbitration rules.
在这13份申请中，12份申请财产保全令，一份申请证据保全令。所有申请均是单方面提出，涉及到来自香港、中国内地和其它管辖地的申请人和被申请人。
Of the 13 applications, 12 were made for orders to preserve assets, and one was for an order to preserve evidence. All applications were made on an ex parte basis and involved applicants and respondents from Hong Kong, Mainland China and other jurisdictions.
申请是向内地的九个法院提出的。据香港国际仲裁中心了解，至少有五个财产保全申请已获批，总价值近17亿人民币（约合2.43亿美元）。在每一份申请中，仲裁中心均向申请人开具了接受函，并在某些案件中，应法院请求，直接向法院发送了接受函复印件或申请人的申请书。
The applications were made to nine different mainland Chinese courts. The HKIAC is aware of at least five of the applications for preservation of assets having been granted to the total value of approximately RMB1.7 billion (US$243 million). In each of the applications, the HKIAC has issued a letter of acceptance to the applicant, and in some cases has provided a copy of the letter of acceptance, or the applicant's application, directly to the relevant court upon the court's request.
考虑到上述数据，且鉴于《安排》是在2019年10月1日才生效，显然，《安排》对仲裁地在香港的由香港国际仲裁中心管理的仲裁程序带来了重大影响 。《安排》解决了仲裁地在香港的仲裁当事人的需求，也能确保香港仲裁继续作为一个有效的争端解决形式。
Considering the above-mentioned statistics, and in light of the fact that the arrangement has only been in force since 1 October 2019, it is apparent that the Arrangement has had a significant impact for applicants in HKIAC arbitrations. The Arrangement has clearly addressed a need for parties who are participating in arbitrations seated in Hong Kong, and has helped to ensure that arbitration in Hong Kong continues to be an effective form of alternative dispute resolution.
此外，《安排》不仅涵盖财产保全令，也涵盖了证据保全令，让当事人有了选择，可保持香港仲裁程序的完整。这也使得当事方更愿意选择通过像香港仲裁中心这样的合资格机构来进行仲裁程序。
Further, the usage of the Arrangement, to not only preserve assets but also evidence, also serves to prove that options are now available to parties to ensure that the integrity of arbitral proceedings seated in Hong Kong is preserved. This only increases the appeal of having an arbitration administered through a qualified institution such as the HKIAC.
香港国际仲裁中心在《安排》生效之后接到的所有申请都涉及到正在进行中的仲裁，即在仲裁中心已接受仲裁后申请接受函。《安排》考虑到了在相关机构（如香港国际仲裁中心）接受仲裁被之前申请临时措施的情况，但这一情形的实践较少。
Notably, all of the applications that the HKIAC has received since the Arrangement came into effect have been in relation to ongoing arbitrations, i.e., applications for letters of acceptance after an arbitration has already been accepted by the HKIAC. While the arrangement contemplates the possibility of interim measures being applied for before an arbitration has been accepted, from the HKIAC's perspective, such an option appears to be exercised less frequently.
随着《安排》在中国法庭上的认知度和申请越来越广泛，对于香港国际仲裁中心而言，可以预见到，《安排》将会更多地使用在仲裁案件中，不仅是已经进行中的仲裁程序，还有在仲裁开始前考虑中的当事人也会运用《安排》。
As awareness and application of the Arrangement becomes more widespread in courts around China, the HKIAC expects greater usage of the Arrangement, not only in cases where arbitration is already ongoing in Hong Kong, but in respect to applications that parties may be considering before commencing an arbitration.
总而言之，《安排》项下的使用数据反映出了《安排》带来的即时影响和有效性，也说明《安排》切实地为香港仲裁机构和内地法庭建立了一个有效的合作机制。随着《安排》的认知度和使用率越来越广，香港国际仲裁中心能够更好地促进这一合作。
In summary, the statistics shown in relation to the arrangement speak to the immediate impact and effectiveness of the arrangement, and have helped to create an effective regime for co-operation between Hong Kong arbitral institutions and mainland Courts. The HKIAC is well positioned to further facilitate such co-operation as awareness and usage of the Arrangement grows over time.
香港国际仲裁中心是《安排》规定的合资格仲裁机构，如欲了解更多这方面的信息，包括《安排》全文，最高人民法院对《安排》的解释和适用的注释，模板文件链接，合资格仲裁机构名单，相关的香港和内地法律，以及香港国际仲裁中心有关《安排》的出版物链接，请点击“阅读原文”。
More information on the HKIAC's role as a qualified institution under the arrangement, including the full text of the arrangement, notes on interpretation and application of the arrangement by the Supreme People's Court, links to template documents, lists of qualified arbitral institutions, relevant Hong Kong and mainland Chinese laws, and links to the HKIAC's publications on the arrangement, please click "read more".
*本文原载于《商法》2020年2月10日。
Eric Ng 吴家欣
Eric is Managing Counsel at the HKIAC. Prior to joining the HKIAC, Eric worked for five years as a barrister-at-law in Hong Kong focusing primaril yon international commercial and construction arbitrations, as well as general commercial litigation in Hong Kong, and has worked as counsel as well as tribunal secretary in several major international commercial, construction, and financial arbitrations around the world.
In addition to his work as a barrister, Eric was previously Adjunct Professor at the University of International Business and Economics in Beijing, lecturing in advocacy and investor-state arbitration. Eric has also published on issues of international dispute resolution and investor-state arbitration.
Eric holds a BCL from Oxford University, PCLL and JD from City University from Hong Kong, MSc E-commerce from the University of Hong Kong, as well as a BS in Business Administration and Information Systems from Babson College in the USA. He is admitted to practice law in Hong Kong.
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