Where interim measures from Mainland courts in aid of a Hong Kong arbitration stands now

The assets are on the Mainland. The arbitration agreement points to Hong Kong. Between those two facts lies a procedural question that determines whether an award, when it comes, is worth anything at all. An award creditor who waits until the final award to think about asset preservation may find that the counterparty has moved or dissipated what was there. The window for interim protection – and the route to obtaining it across the boundary – is not theoretical. It is the practical hinge on which a great many cross-border disputes turn.

Since 1 October 2019, parties to a Hong Kong-seated arbitration may apply to Mainland courts for interim measures – including property preservation, evidence preservation and conduct preservation – under the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (the Interim Measures Arrangement). Hong Kong is the only jurisdiction outside the Mainland whose seated arbitrations can access this route. The application is made before the arbitral award is issued, and the clock runs from the moment of filing with the designated Mainland court through the authorised institution in Hong Kong.

This analysis covers what is commercially at stake, how the cross-border interface actually operates, where the comparative position sits as against other enforcement routes, and where our desk sees the practical risk concentrating now.

What is commercially at stake when assets are across the boundary?

The starting point is not procedural. It is the asset map. A Mainland operating company that owes money to a foreign counterparty – or that is in dispute with a joint venture partner – holds its productive value in bank accounts, receivables, property and equity that sit under Mainland jurisdiction. A Hong Kong arbitration clause, without more, does not give the tribunal any power over those assets before an award is made. The tribunal can order interim measures against a party; it cannot itself freeze a bank account in Shenzhen.

What fills that gap is the Interim Measures Arrangement. Before it came into force, the position was stark. A party commencing arbitration in Hong Kong – even with an unimpeachable arbitration clause and a strong case – faced the prospect that its counterparty could restructure, encumber or transfer assets during the arbitration period. That period routinely runs to eighteen months or more for complex commercial matters. For a counterparty with the means and motivation to move assets, that is sufficient time.

The commercial stakes therefore run in both directions. A claimant with Mainland-asset exposure needs the preservation route to give the eventual award any bite. A respondent needs to understand the mechanism to manage its own operations lawfully during the pendency of proceedings – and to avoid the adverse consequences of an order made without notice.

In our cross-border practice, the Interim Measures Arrangement comes up most frequently in three situations: disputes between offshore holding vehicles and Mainland operating entities; joint venture breakdowns where one party holds the equity or cash in a Mainland company; and cross-border supply and distribution disputes where the asset value is in receivables held on the Mainland side.

How does the Interim Measures Arrangement actually operate?

The governing instrument is the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region, which took effect on 1 October 2019. It operates as a bilateral procedural bridge between the HKSAR and the Mainland court system. To use it, three structural conditions must be satisfied.

First, the arbitration must be seated in Hong Kong and administered by one of the authorised institutions listed under the Arrangement. As at the date of this analysis, those institutions include the HKIAC, the China International Economic and Trade Arbitration Commission Hong Kong Arbitration Center, the International Court of Arbitration of the International Chamber of Commerce (Asia office in Hong Kong), and several others. An ad hoc arbitration seated in Hong Kong is not within scope. Institutional administration is a hard requirement, not a soft preference.

Second, the application must be filed with the designated Mainland court through the authorised institution. The route is not direct from counsel to the Mainland court. The institution plays a transmission and verification role. A party applies to the institution, which certifies the filing and transmits to the designated Mainland intermediate people's court for the location of the assets or the respondent.

Third, the application may be made before or after the arbitral proceedings are formally constituted – including, critically, before the tribunal is formed. This means interim protection can be sought at the commencement of the arbitration, not only once a full panel is seated. That early-access feature is one of the Arrangement's most important practical characteristics. It compresses the timeline in which asset dissipation can occur before a preservation order is in place.

The Mainland court applies its own procedural law to the application. It will consider whether the circumstances warrant preservation – typically whether there is a genuine risk of dissipation or loss that would render any eventual award unenforceable or materially harder to satisfy. A counter-security requirement is common. The applicant should expect to provide a guarantee or undertaking as to damages, calibrated to the value of the assets to be preserved.

Where does the cross-border interface create friction?

The Arrangement removes the threshold barrier that previously made Mainland court assistance unavailable to Hong Kong-seated arbitrations. But removing the barrier does not flatten the terrain on the other side. Several interface points create practical friction that experienced cross-border counsel must anticipate.

The documentation burden is the most immediate. Applications must satisfy both the procedural requirements of the authorised institution and the evidentiary expectations of the Mainland court. Those expectations are not identical to the standards a Hong Kong practitioner applies in an inter partes injunction application before the Court of First Instance. The affidavit and supporting materials must be prepared to a standard that the Mainland court will act on, not merely to the standard that would satisfy a Hong Kong interlocutory judge.

Asset identification is the second friction point. A Mainland court can only preserve what is specifically described. A broad, open-ended preservation order of the kind sometimes granted in common-law jurisdictions – freezing assets generally up to a specified sum – does not translate directly. The applicant needs to identify the accounts, property or equity stakes with sufficient specificity to allow the court to act. Without that specificity, the order may be narrower than needed or may fail entirely.

A third point is the interaction between the Arrangement and the arbitral tribunal's own interim-measures powers. Under the Arbitration Ordinance (Cap. 609) – which is modelled on the UNCITRAL Model Law – the tribunal has power to order interim measures against parties. The institution's emergency-arbitrator mechanism (under the HKIAC Administered Arbitration Rules, effective 1 June 2024) can move within a short window from file transmission to relief. An emergency arbitrator's order, however, operates against the party, not against a Mainland court's enforcement machinery. For assets physically located on the Mainland, the Arrangement remains the route to court-backed enforcement. The two mechanisms are complementary, not substitutes, and their sequencing matters.

We regularly see cross-border disputes where the claimant has obtained an emergency arbitrator's order but has not simultaneously pursued Mainland preservation, on the assumption that the order itself provides sufficient interim protection. It does not, where the assets are Mainland-situated. The enforcement of an emergency arbitrator's order in a Mainland court is a different procedural question, not resolved by the Arrangement.

How does this compare to the position before October 2019?

Before the Interim Measures Arrangement, a party to a Hong Kong-seated arbitration with Mainland assets had, in practical terms, no direct route to Mainland court interim relief. The New York Convention – to which the Mainland and Hong Kong are both party, though PRC-HK awards are handled via the bilateral Arrangements rather than the Convention – governs the recognition and enforcement of final awards, not pre-award preservation. Mainland courts had no procedural basis to grant property preservation in aid of a foreign (meaning, in Mainland terms, a Hong Kong-seated) arbitration.

The pre-2019 response was creative but imperfect. Some practitioners structured parallel proceedings – commencing litigation in a Mainland court to obtain preservation, then staying those proceedings in favour of the arbitration. That route was procedurally complex, required the Mainland court to accept jurisdiction for the preservation application, and created its own risks around waiver of the arbitration agreement. Other practitioners sought preservation through Hong Kong courts in aid of the arbitration, then attempted to use the bilateral judgment-recognition arrangements to give that order effect on the Mainland. The 2008 choice-of-court recognition regime (subsequently replaced by the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance, Cap. 645, in force from 29 January 2024) had limited utility for interim orders.

The Arrangement therefore represented a structural change, not merely an incremental improvement. It created a dedicated, purposive route that did not exist before. What matters now – more than five years into the regime's operation – is where the practical gaps remain and where the risk concentrates for parties who rely on it without full understanding of its conditions.

What does the comparative position look like now?

Hong Kong occupies a unique position in the global arbitration map because of the Arrangement. Singapore, for example – the principal competing arbitral seat in Asia – does not have an equivalent mechanism giving parties to Singapore-seated arbitrations direct access to Mainland court interim measures. This asymmetry is commercially significant for disputes with Mainland-asset exposure, and it features in how cross-border groups decide where to seat their arbitration clauses.

That said, a comparison must be honest about what the Arrangement does and does not do. It provides access to Mainland interim measures; it does not guarantee that those measures will be granted. The Mainland court applies its own criteria and procedural law. It does not provide a fast-track to enforcement of the eventual award – that is governed by the separate bilateral arrangement on mutual enforcement of arbitral awards (the 1999 Arrangement and the 2020 Supplemental Arrangement). And it does not extend to arbitrations that are seated outside Hong Kong, even if the parties are Hong Kong entities.

The position in the United Kingdom, for reference purposes, illustrates a different model. A UK-seated arbitration with a counterparty whose assets are on the Mainland has no equivalent bilateral preservation mechanism. A party in that position must either obtain a worldwide freezing order from the English courts and seek to give it effect through Mainland proceedings – a route that is available in principle but uncertain in practice – or accept that pre-award preservation of Mainland assets is materially harder to achieve. For cross-border contracts where Mainland-asset exposure is real, this comparison is a strong argument for Hong Kong as the seat.

Our desk regularly advises on the seat-selection question at the contract-drafting stage, precisely because the Arrangement's access conditions make the seat choice consequential in ways that go beyond the usual considerations of neutrality and procedural law. The guide on drafting an effective HKIAC arbitration clause for a counterparty structured through the United Kingdom – available at our insights section – addresses the drafting conditions that preserve access to the Arrangement.

Where does the practical risk concentrate now?

More than five years after the Arrangement came into force, the procedural route is established. The risk is no longer at the threshold question of whether access is available. The risk has migrated to execution: whether parties and their counsel take the steps that preserve access, at the right moment, in the right sequence.

The first risk concentration is at the drafting stage. The Arrangement requires administration by an authorised institution. An arbitration clause that nominates a non-authorised institution – or that provides for ad hoc arbitration, even with a Hong Kong seat – is outside the Arrangement's scope. We see this error in clauses drafted by counsel unfamiliar with the specific Hong Kong-Mainland interface, including clauses modelled on standard-form templates that are appropriate for other seats but do not satisfy the Arrangement's institutional requirement.

The second risk concentration is at the timing of the application. The Arrangement permits application before the arbitral proceedings are formally constituted. The practical benefit of that permission is lost if the applicant waits. Every week between the dispute crystallising and the preservation application being filed is a week in which assets can move. The application must be prepared before the crisis, not during it. That means the procedural steps – institution notification, documentation preparation, asset identification, counter-security assessment – must be ready to deploy at short notice.

A third risk concentration is the assumption that a preservation order, once obtained, solves the enforcement problem. It does not. A Mainland property-preservation order freezes assets for the duration of the proceedings. When the award is made, a separate enforcement step is required under the applicable arbitral-award enforcement arrangement. The preservation order and the award enforcement are sequential steps in a single strategy, not alternatives.

Consider a pattern we have seen in our cross-border practice. A joint venture dispute between an offshore holding company and its Mainland partner escalates after one party begins to restructure assets within the Mainland operating group. The Hong Kong-seated arbitration is commenced promptly, and an emergency arbitrator application is filed within days. The emergency order is granted. Then – and this is where the gap appears – the claimant's counsel focuses on the arbitration on the merits, on the basis that the emergency order provides sufficient interim protection. The Mainland assets continue to move, because the emergency order has not been backed by a Mainland court preservation order through the Arrangement. By the time the award is made, the enforcement landscape has shifted materially. The claimant has won the arbitration and faces a materially harder enforcement exercise than would have been necessary.

The lesson is not that the emergency-arbitrator mechanism is ineffective. It is that the two mechanisms – the emergency arbitrator under the HKIAC Rules and the Mainland preservation route under the Arrangement – address different problems and must be run in parallel, not in sequence.

The sequence above describes the standard position. Your matter turns on the specific documents, the assets actually in play, and the institutions engaged – which is where the route is won or lost.

For a structured assessment of your cross-border enforcement position, including interim measures strategy, write to us at info@lockhartyip.com.

The enforcement endgame: interim measures in the award lifecycle

Interim measures do not exist in isolation. They are one instrument in the enforcement endgame – the sequence of steps that begins at the moment a dispute becomes live and ends when value is actually recovered. Understanding where interim measures sit in that lifecycle is essential to using them correctly.

At the commencement stage, the claimant's objectives are to secure the arbitration forum, constitute the tribunal promptly, and protect the assets. The Arrangement's availability before tribunal constitution is specifically designed to serve that last objective. The claimant need not wait for a panel to be seated before filing for Mainland preservation.

During the arbitration on the merits, the preservation order runs. The Mainland court will have set a time limit, tied to the duration of the arbitral proceedings. If the proceedings extend, the applicant may need to renew or extend the preservation order. This is a procedural step that is easily overlooked by teams managing the arbitration on the merits without a parallel procedural track for the preservation.

At the award stage, the claimant moves from preservation to enforcement. The route for enforcing a Hong Kong arbitral award against Mainland assets is the bilateral arrangement on mutual enforcement of arbitral awards – the 1999 Arrangement and the 2020 Supplemental Arrangement – which permit simultaneous enforcement applications (in both jurisdictions) since the 2021 amendment. The preserved assets then become the target of the enforcement application.

Each transition in that lifecycle is a procedural step with its own conditions. The claimant who has managed each step – preservation, renewal where necessary, enforcement – arrives at the award stage with the enforcement machinery already in motion. The claimant who has managed only the arbitration on the merits arrives at the same stage and then has to build the enforcement position from scratch, against assets that may have changed status in the intervening period.

Our full service on disputes and arbitration, including interim measures strategy and cross-border enforcement, is set out at our disputes and arbitration practice page.

Objection: is the Arrangement actually used, or is it theoretical?

A question our desk encounters from sophisticated counterparties – and from in-house counsel who have heard about the Arrangement but not seen it in action – is whether it functions in practice or whether its utility is largely academic. The concern is reasonable. Cross-border procedural mechanisms are sometimes more impressive on paper than in operation.

The honest answer is that the Arrangement is operational. Mainland courts have received and acted on applications transmitted through the authorised institutions. The mechanism works as designed for applicants who satisfy the conditions: proper institutional administration, specific asset identification, and adequate counter-security. The practical experience is that well-prepared applications – where the asset identification is precise and the documentation meets Mainland procedural standards – move through the designated court at a pace consistent with the preservation objective.

The Arrangement does not function well – or at all – where the applicant has not satisfied the institutional requirement, has not identified assets with sufficient specificity, or has not budgeted for the counter-security requirement. Those are not failures of the mechanism; they are failures of preparation. They are also the failure modes that disciplined cross-border counsel can address before the dispute arises.

If an earlier filing or enforcement attempt produced an adverse or stalled result, a second read of the procedural sequence can identify where the step failed and which routes remain open.

To discuss how the Interim Measures Arrangement applies to your cross-border enforcement position, contact us at info@lockhartyip.com.

A decision map: when does the Arrangement apply, and when does it not?

Not every dispute with a Mainland dimension is within the Arrangement's scope. The decision map works as follows.

If the arbitration is seated in Hong Kong and administered by an authorised institution, and the assets or respondent are located on the Mainland, the Arrangement is the primary route to pre-award interim measures. The application goes to the authorised institution, which transmits to the designated Mainland court. The applicant should prepare for counter-security and specific asset identification from the outset.

If the arbitration is seated in Hong Kong but administered by a non-authorised institution – or is ad hoc – the Arrangement is unavailable. The claimant must consider whether interim measures from Hong Kong courts can be obtained under the Arbitration Ordinance's own interim-measures provisions, and whether any other bilateral mechanism provides an enforcement route for those measures in the relevant Mainland court. The answer is generally less favourable than the Arrangement route.

If the arbitration is seated outside Hong Kong – including Singapore, London, or a neutral third seat – the Arrangement does not apply at all. The claimant with Mainland-asset exposure in that situation faces the pre-2019 position: no direct bilateral preservation mechanism, and reliance on Mainland court jurisdiction for preservation under domestic procedural rules.

If the dispute is resolved through Mainland litigation rather than Hong Kong arbitration, interim measures are available through the Mainland court's own procedural mechanisms, without reference to the Arrangement. The Arrangement is specifically for Hong Kong-seated arbitrations. Mainland-litigation interim measures are governed by Mainland procedural law directly.

If the dispute involves UAE-situated assets alongside Mainland assets – a pattern our desk sees in transactions involving Middle Eastern counterparties with Mainland exposure – the enforcement picture becomes multi-jurisdictional from the outset. The Arrangement handles the Mainland side; a separate enforcement strategy is required for the UAE assets. Our analysis of enforcement routes against UAE-based debtors is available at our UAE debt-recovery and enforcement page.

Our read on where this stands now

The Interim Measures Arrangement has matured into a functional and consequential part of the Hong Kong arbitration infrastructure. Its existence has changed the calculus for cross-border groups deciding where to seat their arbitration clauses and, when disputes arise, how to manage the pre-award period.

Where the risk concentrates now is not at the threshold – the mechanism exists and works – but at the execution level. Parties who drafted their arbitration clauses without specific knowledge of the institutional requirement are outside the Arrangement's scope without any amendment to the underlying contract. Parties who know the mechanism but do not activate it promptly at the moment of dispute lose the protection it provides during the arbitration's most vulnerable phase.

The Arrangement also sits within a broader evolution of the Mainland–Hong Kong cross-border legal infrastructure. The reciprocal judgment-enforcement regime under Cap. 645 (in force from 29 January 2024) has expanded the scope of Mainland civil judgments that can be registered and enforced in Hong Kong, and vice versa. The mutual arbitral-award enforcement arrangements have been progressively deepened, with simultaneous enforcement now available since the 2021 amendment. Each development moves the cross-border enforcement position in a direction that rewards early, sequence-aware strategy over reactive filing.

The question for a cross-border group with Mainland asset exposure is not whether the Arrangement is available. It is whether the group's arbitration clause, its dispute-response protocols, and its enforcement strategy are positioned to use the Arrangement effectively. Those are questions that are cheapest to answer before a dispute arises and most expensive to answer after an award has been made against assets that have already moved.

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• Disputes & Arbitration – cross-border enforcement, arbitration strategy, and interim measures across Greater China and offshore centres
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This publication is general information and does not constitute legal advice. For advice on your situation, contact info@lockhartyip.com.