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Newsletter: The Code of Law | Data Poisoning – Corrupt Data Can Corrupt an AI Model
29 January 2026
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Lawyers tend to specialize in certain areas of laws: finance, corporate, shipping, insurance and so on. My own observation is that most lawyers receive an all-rounded legal training before they (by choice, by chance or by a mix of factors) focus on a particular area and become a specialist lawyer. The specialization is a continuous process rather than an abrupt switch, whereby the lawyer with his legal training gradually learns about the industry that he is specializing into over the years. For example, a junior lawyer may not know much about finance from day one, but if he wishes to practise as a finance lawyer he must gain a deep understanding on the functioning of the financial markets and instruments. This process often takes years, as the lawyer needs to learn about a discipline that is not his original one.
There are exceptions to this career trajectory, of course. Some lawyers had been trained in other professions before they retrained themselves as lawyers. Sometimes those previous backgrounds have a bearing on the lawyer’s choice of specialization. For example, a medical doctor-turned-lawyer has a natural advantage in practicing in medical law, an accountant-turned-lawyer may have a unique edge as a corporate finance lawyer.
I’m a mix. My legal specialization is finance, so I also started off as a lawyer who learned the ropes of finance bit by bit. But data science to me is the opposite: I did not practise or train myself into a data science lawyer: instead, I parachuted myself into learning data science (although, as I plan to explain in the future, I can draw some connecting lines between legal skills and programming skills). I completed a master’s degree in data science, where I learned about mathematics, coding, computer science, and many interesting subjects.
I now hope to come back to bridge the gap to law, starting from the data science’s side. I have a good premonition about this journey. Often times, lawyers are terrified at STEM subjects (who chose law because “I’m not good with numbers”?) but since I’ve been there, I think maybe (just maybe) there is a way to explain the STEM concepts to lawyers in a way that lawyers can understand.
Another reason for my attempt is because I hope to find intersections between law and data science or simply “law and data”. An obvious example of that would be “data privacy laws”. Therefore, I hope to write a series of articles on issues and concepts that appear in data privacy laws. Now compliance with data privacy laws can often be highly technical (in both senses of the word: both requiring specialised skills and requiring computer-related skills). Therefore, I hope my articles would also present a somewhat balanced perspectives between law and tech. Although my approach may start off more from the perspective of popularising STEM concepts for lawyers, hopefully these articles may open the legal and compliance perspectives to data scientists, engineers and the like.




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Navigating the New Public Float Requirements: Key Changes and Practical Considerations for Listed Issuers
08 January 2026
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- Navigating the New Public Float Requirements: Key Changes and Practical Considerations for Listed Issuers
The New Market Value-Based Thresholds
Under the New Public Float Requirements, issuers are required to comply with one of the ongoing public float thresholds below at all times.
| The Initial Prescribed Threshold
(Main Board Rules 13.32B(1) and 19A.28B(1)(a) / GEM Rules 17.37B(1) and 25.21B(1)(a)) |
The Alternative Threshold (NEW)
(Main Board Rules 13.32B(2) and 19A.28B(1)(b) / GEM Rules 17.37B(2) and 25.21B(1)(b)) |
| Existing issuers listed under this regime will continue to maintain a public float of at least 25% (or a lower percentage previously granted by the Exchange at listing). | Issuers may opt for this new threshold, provided they meet both conditions:
(a) The public float has a market value of at least HK$1 billion (Note (1)); and (b) The public float constitutes at least 10% of the issuer’s total issued shares of the listed class (excluding treasury shares) (Note (2)).
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| Note (1): The market value of an issuer’s public float is calculated by multiplying (a) the number of shares held by the public as of the date of determination by (b) the volume weighted average price of the class of shares listed on the Exchange over the 125 trading days (or all trading days since listing, if shorter, in the case of a PRC issuer with other listed shares) immediately prior to the date of determination.
Note (2): The Alternative Threshold is not available to an issuer whose shares have traded for fewer than 125 trading days since listing. Where its listed shares have been suspended from trading for more than five consecutive business days during the 125-trading-day reference period, the Exchange reserves the discretion to extend the period. |
|
Bespoke Rules for PRC Issuers with Other Listed Shares
Under Main Board Rule 19A.28B (GEM Rules 25.21B), PRC issuers with shares listed on another exchange (such as A+H issuers) are subject to a bespoke requirement. Their H-share public float must satisfy one of the following:
(a) constitute at least 5% of the total number of issued shares in the class to which H shares belong; or
(b) have a market value of at least HK$1 billion.
Additional Reporting & Disclosure
All issuers now face increased disclosure duties under Main Board Rules 13.32D and 19A.28D (GEM Rules 17.37D and 25.21D) which are summarised below.
| Reporting Obligation | Monthly Return | Annual Report |
| Confirmation of compliance with the applicable Ongoing Public Float Threshold | All issuers | All issuers |
| Minimum public float percentage threshold | Issuers relying on the Initial Prescribed Threshold | Issuers relying on the Initial Prescribed Threshold |
| Actual public float percentage | Issuers relying on the Alternative Threshold | All issuers |
| Actual public float market value | Issuers relying on the Alternative Threshold | Issuers relying on the Alternative Threshold |
| Share ownership composition | Not applicable | All issuers |
| Share capital structure | Not applicable | All issuers |
Disclosures concerning public float must be founded upon information that is publicly accessible or, alternatively, within the knowledge of the issuer’s directors or supervisors (in the case of a PRC issuer). For this purpose, the Exchange does not expect issuers to exhaust all possible means to ascertain the underlying shareholders, for example, an issuer is not expected to conduct an investigation under section 329 of the Securities and Futures Ordinance (“SFO”) (see paragraph 10 of Guidance Letter (HKEX-GL121-26) (“Guidance Letter”)).
However, an issuer must make reasonable efforts to determine its public float for the purpose of the disclosure. For example, an issuer is expected to:
(a) incorporate the information reported in filings made under Part XV of the SFO; and
(b) put in place necessary internal control procedures to ensure that its core connected persons (and other persons who are not considered “the public”) are aware of the requirement, and will promptly inform the issuer of their initial shareholdings and any subsequent changes in their shareholdings.
The issuer should incorporate information received under such procedures with any other non-public shareholding that has not been disclosed in public filings (e.g. in situations where the relationship of the shareholder with the issuer does not trigger filing requirement) but is known to directors or supervisors (in the case of a PRC issuer). This may include, for example, connected persons at subsidiary level holding less than 5% of the shares of the listed issuer.
Annual Reports
Main Board Rules 13.32D(2)(c)(iii)(1) and 19A.28D(2)(c)(iii)(1) (GEM Rules 17.37D(2)(c)(iii)(1) and 25.21D(2)(c)(iii)(1)) require an issuer to set out, in each of its annual reports, a statement showing the composition of ownership of the relevant class of shares listed on the Exchange as at the end of the relevant financial year.
Share Ownership Composition
Summarised below, as a minimum, is a breakdown categorising shareholders as “public” or “non-public”.
| Group of shareholders | Expected disclosure | |
| Shareholders who are not members of “the public” | ||
| (i) | Substantial shareholders of the listed issuer and their close associates | Individual shareholding of each shareholder on an individually named basis (Note) |
| (ii) | Directors, supervisors, chief executives of the listed issuer and their close associates | |
| (iii) | Any other persons excluded from the definition of “the public”, e.g. directors and substantial shareholders of subsidiaries of the listed issuer | Aggregate shareholding of the group |
| Shareholders who are members of “the public” | ||
| (i) | Persons who fall within the definition of “the public” and have disclosed their interests pursuant to Part XV of the SFO | Individual shareholding of each shareholder on an individually named basis (Note) |
| (ii) | A trustee holding shares which are regarded as being held by “the public” pursuant to the Note to Main Board Rule 8.24 / Note 3 to GEM Rule 11.23, i.e. an independent trustee holding granted (vested or unvested) shares of a share scheme of the issuer on behalf of independent scheme participants | |
| (iii) | Any other members of “the public” | Aggregate shareholding of the group |
Note: The disclosure should indicate the name of each shareholder and the nature of its relationship with the issuer.
Share Capital Structure
Main Board Rules 13.32D(2)(c)(iii)(2) and 19A.28D(2)(c)(iii)(2) (GEM Rules 17.37D(2)(c)(iii)(2) and 25.21D(2)(c)(iii)(2)) require an issuer to set out, in each of its annual reports, a statement showing its share capital structure as at the end of the relevant financial year. This statement must detail all types/classes of securities, including their percentage of total shares, ranking, and any special voting rights.
Identification and Consequences of Significant Public Float Shortfall
A public float shortfall is considered as a “Significant Public Float Shortfall” under the Listing Rules unless a portion of the issuer’s class of shares listed on the Exchange and held by the public:
(a) represents at least 15% of the issuer’s total number of issued shares in the class of shares listed (excluding treasury shares) (or for an issuer subject to a minimum public float percentage lower than 25% at the time of its initial listing, represents at least 50% of the issuer’s Initial Prescribed Threshold); or
(b) has a market value of at least HK$500 million and represents at least 5% of the issuer’s total number of issued shares in the class of shares listed (excluding treasury shares).
In the case of a PRC issuer with other listed shares, a public float shortfall is considered as a Significant Public Float Shortfall under the Listing Rules unless its H shares listed on the Exchange and held by the public:
(a) have a market value of at least HK$500 million; or
(b) represent at least 5% of the PRC issuer’s total number of issued shares in the class to which H shares belong (excluding treasury shares).
An issuer must, upon becoming aware of a Significant Public Float Shortfall: (a) issue an initial announcement; and (b) until it has restored its public float, include a warning statement in all announcements and documents required to be published by the Listing Rules.
The Exchange will identify issuers with a Significant Public Float Shortfall based on the market capitalization and percentage of their public float. Trading in such shares will not be suspended immediately, but a marker “-PF” will be added after the stock name. If the issuer fails to restore its public float within a remedial period of 18 months (12 months for GEM), the Exchange will cancel the listing of the shares of such issuer.
Issuers should therefore conduct proactive modeling and scenario planning and take at least the following actions:
(a) continuously monitor the company’s position against the Significant Public Float Shortfall safety nets (e.g., 15% or HK$500 million + 5%) to avoid accidentally triggering the severe “-PF” regime; and
(b) before any share buyback, placement, or takeover, rigorously model the impact on both main threshold and the Significant Public Float Shortfall safe harbour levels.
Mandatory Actions Upon a Public Float Shortfall
Under Main Board Rules 13.32E(1)(b) and 19A.28E(1)(b) (GEM Rules 17.37E(1)(b) and 25.21E(1)(b)), an issuer must publish an announcement to inform the public within one business day after it becomes aware that it has a public float shortfall.
Main Board Rules 13.32E(2)(b), 13.32E(3), 19A.28E(2)(b) and 19A.28E(3) (GEM Rules 17.37E(2)(b),17.37E(3), 25.21E(2)(b) and 25.21E(3)) set out that for as long as a public float shortfall exists, the issuer itself, its directors, supervisors (for PRC issuers), and their close associates must not take any action that will further lower the issuer’s public float percentage, unless in exceptional circumstances.
This ordinarily means that directors should not, and should procure that their close associates should not, further increase their shareholding in the issuer. The Exchange has the power to impose sanctions on any director or other person if they are found to have caused by action or omission, or knowingly participated in, a contravention of the Listing Rules, e.g. a breach of the public float requirements.
Paragraph 26 of the Guidance Letter explains some of the “exceptional circumstances” to include the following:
(a) the issuer subsequently seeking privatisation (e.g. by repurchasing shares through the making of a general offer);
(b) compliance with court orders or regulatory enforcement actions; and
(c) the temporary holding of shares pursuant to a pre-existing arrangement, followed immediately by disposal as part of a transaction to restore a public float shortfall.
Conclusion
The New Public Float Requirements are introduced to address the increasingly different circumstances of existing and new issuers listed on the Exchange and allow flexibility for issuers to comply with the public float requirements as the Exchange welcomes more new listings.
For further information, please feel free to contact the authors of this newsletter or your usual contact at CFN Lawyers LLP for assistance.
Authors
| PATRICK WONG
Partner Email: patrick.wong@cfnlaw.com.hk Tel: +852 3583 0263
|
FION LEUNG
Paralegal Email: fion.leung@cfnlaw.com.hk Tel: +852 3468 5219
|
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When IP Enforcement Strategies Collide: Navigating the East-West Divide
02 December 2025
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CFN Lawyers LLP Contributes to the 6th Ed. of the Legal 500: Alternative Investment Funds Comparative Guide’s Hong Kong Chapter
17 September 2025
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CFN Lawyers LLP is proud to announce that our partners, Keith Yuan and Bowie Fung, have authored the Hong Kong chapter of the 6th Edition of the Legal 500: Alternative Investment Funds Comparative Guide. This prestigious publication showcases leading legal perspectives from around the world, and we are honoured to represent Hong Kong’s evolving alternative investment funds (AIF) landscape.
Their contribution offers a comprehensive overview of the legal and regulatory framework governing AIFs in Hong Kong. The chapter provides valuable insights into:
- Fund Structures: Analysis of key vehicles including Limited Partnership Funds (LPFs), Open-ended Fund Companies (OFCs), and offshore structures.
- Investor Protections: Examination of liability safeguards and passive investor roles.
- Market Preferences: Trends in fund structuring across asset classes, with emphasis on Greater China.
- Regulatory Environment: Interpretation of the Securities and Futures Ordinance (SFO) and its implications for fund operations and marketing.
- Liquidity Management: Tools for managing redemption and illiquidity risks.
- Tax Treatment: Overview of the Unified Funds Exemption (UFE) and its impact on fund domiciliation.
- Fee Structures: Commentary on management and performance fee models, including waterfall and hurdle rate mechanisms.
- Licensing & Marketing: Guidance on licensing requirements and marketing strategies for professional and retail investors.
The Legal 500 is a leading legal industry research and ranking firm based in London. It has been publishing Comparative Legal Guides for various practice areas for decades, by inviting top-ranked law firms and lawyers from different jurisdictions to share their insights and expertise in specific practice areas.
Mr. Keith Yuan is a seasoned lawyer with over 20 years of legal practice experience. He is qualified to practice law in Mainland China, the Hong Kong SAR, and England & Wales. Mr. Yuan specializes in the establishment and compliance of investment funds, private equity investments, and corporate financing. He has extensive practical experience in fund structuring and transaction execution. Recognized for his expertise in the investment funds sector, Mr. Yuan has been repeatedly ranked as a Highly Recommended Lawyer in the Greater China region by The Legal 500 and IFLR1000.
Bowie Fung is a founding partner of CFN Lawyers LLP. She has over 20 years of working experiences in advising high net worth individuals, listed companies and licensed corporations in corporate finance, trust establishment, equity and debts investments, M&A, IPO, corporate governance, ESG, regulatory compliance, internal control and company secretarial matters. She is the first batch of lawyers who passed the 2021 Examination for Hong Kong Legal Practitioners to Practise Law in the Greater Bay Area. While devoting to her practising solicitor career, Bowie is also committed to contributing to society. She has been appointed by the Hong Kong Government as a member of the Hong Kong Air Transport Licensing Authority since 2022. Bowie also acts as the HK Legal Adviser of International Association of Registered Financial Consultants of Hong Kong and Macau, as well as the member of Advisory Board of Global Family Office and Wealth Management Hub (established under the Institute of Knowledge Exchange) of The Hang Seng University of Hong Kong. She is currently a member of the Family Office Practice Committee of the Law Society of Hong Kong. Bowie is awarded as “A List – China’s Elite Lawyer” by China Business Law Journal in 5 consecutive years (2019 to 2024).
Paula Yang from the investment fund department of CFN Lawyers LLP has also contributed to the draft.
This milestone reflects CFN Lawyers LLP’s commitment to thought leadership in the alternative investment space and our dedication to supporting innovation, inclusive finance, and global capital flows. This milestone underscores our commitment to shaping the future of alternative investments in Hong Kong and beyond.
We extend our sincere thanks to The Legal 500 for the opportunity.
To read the full chapter, please visit: https://www.legal500.com/guides/chapter/hong-kong-alternative-investment-funds/
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Challenges of the Registration and Enforcement of Mainland Judgments in Hong Kong
28 July 2025
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Introduction
There are two different regimes under the current legal framework of Hong Kong governing the registration of Mainland judgments in Hong Kong for enforcement. In general, if the relevant Mainland judgment is made before 29 January 2024, an application for its registration in Hong Kong is to be made pursuant to the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap. 597) (the “Old Regime“). If the relevant Mainland judgment is made on or after 29 January 2024, an application for its registration in Hong Kong shall be made pursuant to the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645) (the “New Regime“) (except for certain “excluded judgments“).
Despite the implementation of the New Regime, certain Mainland judgments may still need to be registered under the Old Regime. For the purpose of enforcement, a registered Mainland judgment has the same force and effect as if it had been a judgment originally given in the courts of Hong Kong. Upon registration, the judgment creditor may enforce the Mainland judgment in Hong Kong.
Not all Mainland judgments are registrable in Hong Kong under the Old/New Regime. Under the Old Regime, a registrable Mainland judgment must be given in civil or commercial matters and must meet at least the following requirements: (a) the judgment is given by a designated Mainland court; (b) there exists a valid “choice of Mainland court” agreement; (c) the judgment is final and conclusive as between the parties to the judgment; (d) the judgment is enforceable in the Mainland; and (e) the judgment orders the payment of a sum of money (not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty).
Although the implementation of the Old/New Regime provides a legal framework for cross-border judgment enforcement, the recent case of China Minsheng Trust Co., Ltd V Fu Kwan [2025] HKCA 462 highlights the limitations of the Old Regime. Due to the unique characteristics of the Chinese legal system and Hong Kong legal system, certain types of Mainland judgments may not be registrable in Hong Kong under the Old Regime.
Background
In 2019, China Minsheng Trust Co., Ltd. (the “Plaintiff“) lent four sums of money to Xinhualian Holdings Co., Ltd. (the “Borrower“) pursuant to four loan agreements (the “Loan Agreements“), and Mr. Fu Kwan (the “Defendant“) entered into four guarantee agreements (the “Guarantee Agreements“), each relating to one of the Loan Agreements, whereby the Defendant agreed to guarantee the loans granted to the Borrower under the Loan Agreements.
Pursuant to the Loan Agreements and the Guarantee Agreements, the Plaintiff, the Borrower and the Defendant each confirmed to apply to the Beijing Chang’an Notary Office for notarization of the enforcement of the contract. If the Defendant fails to perform its obligations under the contract, the Plaintiff may directly apply to the People’s Court with jurisdiction for enforcement without going through litigation procedures, and the Defendant would waive his right to defend against the Plaintiff’s direct application for enforcement.
The Borrower failed to repay the loan on time. The Plaintiff applied to the Beijing Chang’an Notary Office for, and obtained, “certificates for execution” pursuant to the Loan Agreements and the Guarantee Agreements, and then applied to the Mainland court for enforcement of the Loan Agreements and the Guarantee Agreements.
On 1 December 2020, the Beijing No. 3 Intermediate People’s Court (the “Beijing Court“) issued a ruling (the “Mainland Judgment“) confirming that the persons subject to enforcement had no property available for enforcement. Further, the persons subject to enforcement had the obligation to continue to fulfil the debt obligation to the Plaintiff for enforcement.
The Plaintiff then applied to the Court of First Instance of the High Court of Hong Kong (the “CFI“) to register the Mainland Judgment for enforcement in Hong Kong. After the registration of the Mainland Judgment was granted by the CFI, the Defendant applied to the CFI to set aside the registration.
The Ruling issued by the CFI
On 29 February 2024, the CFI set aside the registration of the Mainland Judgment on the ground that the ruling that “the persons subject to enforcement were obliged to continue to fulfil the debt obligation to the applicant for enforcement” as provided in the Mainland Judgment only described the Defendant’s payment obligation owed to the Plaintiff, but did not have the effect of “requiring” the Defendant to pay a sum of money. The CFI held, among others, that although the Mainland Judgment described the Defendant’s payment obligation, it did not satisfy Section 5(2)(e) of the Old Regime, that is, the judgment must “order the payment of a sum of money”.
The Appeal
The Plaintiff filed an appeal against the CFI’s decision. On 21 May 2025, the Court of Appeal of the High Court of Hong Kong (the “Court of Appeal“) dismissed the appeal.
The Court of Appeal agreed with the CFI’s finding that the Mainland Judgment did not satisfy Section 5(2)(e) of the Old Regime. As far as the Mainland Judgment was concerned, the debt in question was adjudicated by the Beijing Chang’an Notary Office based on the relevant notarized debt instrument. The ruling issued by the Beijing Court concerned the enforcement procedure of the debt provided in the relevant notarized debt instrument, but the court did not make a ruling on the amount of the underlying debt itself. The ruling that “the persons subject to enforcement were obliged to continue to fulfil the debt obligation to the applicant for enforcement” as provided in the Mainland Judgment was merely descriptive in nature, not a direct order for such persons subject to enforcement to pay a sum of money. Therefore, the Mainland Judgment did not satisfy Section 5(2)(e) of the Old Regime that the judgment must “order the payment of a sum of money”. Accordingly, it did not meet the definition of a registrable Mainland judgment in Hong Kong under the Old Regime and was not registrable.
Legal Implications
Description 5: The Court of Appeal’s ruling reflects that under the Old Regime, a Mainland court’s ruling that merely confirms a debt obligation may not be able to satisfy the registration requirements in Hong Kong. Meanwhile, the Court of Appeal’s ruling also reminds creditors of the limitations of cross-border enforcement procedures. Even if creditors have obtained a favourable enforcement ruling in Mainland China, they will still need to comply with the relevant requirements of the laws of Hong Kong to be able to register and enforce the Mainland judgment in Hong Kong (Mainland judgments not registrable in Hong Kong under the Old/New Regime may still be enforced at common law, but the process will take longer).
It should also be noted that, in general, more types of Mainland judgments are registrable in Hong Kong under the New Regime (which covers a wider range of registrable Mainland judgments).
For example, with regard to Mainland judgments given in a civil or commercial matter, Mainland judgments “given in proceedings that are civil or commercial in nature under the law of the Mainland” (except for certain types of judgments) would have preliminarily met the registration requirements under the New Regime. It was not expressly provided that Mainland judgments must “order the payment of a sum of money” in order to be registrable in Hong Kong.
However, it remains to be seen whether a ruling issued by a Mainland court on the enforcement procedure of a debt (pursuant to the previous ruling issued by a Mainland notary office of the debt based on the relevant notarized debt instrument) would be registrable in Hong Kong under the New Regime.
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Strategic Advantages Under the Interim Measures Arrangement: Choosing Hong Kong as the Seat of Arbitration
11 July 2025
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In an increasingly interconnected global economy, international commercial arbitration has emerged as the preferred mechanism for resolving cross-border disputes. Its advantages — neutrality, enforceability, and procedural flexibility — make it indispensable for businesses navigating complex commercial relationships.
For businesses engaged in transactions with Mainland Chinese entities and designating arbitration as the dispute resolution mechanism, choosing the seat of arbitration (i.e., the jurisdiction in which an arbitration is deemed legally to take place and the award issued) is critical. Among international arbitration hubs, Hong Kong stands apart, offering a unique advantage: the ability to obtain interim relief directly through Mainland courts under 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” (“Interim Measures Arrangement”) which came into force on 1 October 2019.
What are “interim measures”?
Interim measures (or interim relief) are provisional orders issued by the court prior to the final determination of a dispute, with the aim to preserve the status quo, protect evidence, or prevent dissipation of assets during ongoing proceedings. In the case of Mainland China, interim measures include asset preservation, evidence preservation, and conduct preservation.
The availability of interim measures is essential to an effective dispute resolution process. These measures help preserve the value at stake in a dispute and ensure that the subsequent arbitral award remains enforceable and meaningful.
How the Interim Measures Arrangement works
Before the Interim Measures Arrangement came into force, it was practically very difficult for a party to apply to the Mainland courts for interim measures in support of arbitral proceedings seated outside Mainland China. The groundbreaking Interim Measures Arrangement allows parties in Hong Kong-seated arbitration administered by qualified arbitral institutions [1] to seek interim measures from designated Mainland courts [2], whether before the commencement of the arbitration or during the arbitration proceedings.
By way of illustration, any party to the arbitral proceedings seated in Hong Kong and administered by the Hong Kong International Arbitration Centre (HKIAC) under the relevant administration rules may apply to the designated Mainland court for interim measures under the Interim Measures Arrangement against a Mainland Chinese counterparty as follows:
- Before HKIAC accepts the arbitration, the requesting party shall submit its application to the designated Mainland court directly. If the court grants the application, the requesting party must commence an arbitration at HKIAC and submit a “Letter of Acceptance” to the court within 30 days after the interim measure is issued.
- After HKIAC accepts the arbitration, the requesting party shall request a “Letter of Acceptance” from HKIAC together with all relevant documents, such as a draft application for interim measures to the designated Mainland court.
The “Letter of Acceptance” refers to a formal letter issued by HKIAC addressed to the designated Mainland court certifying HKIAC’s acceptance of an arbitration for the purposes of the Interim Measures Arrangement.
HKIAC: Key Statistics of the Interim Measures Arrangement
Since the Interim Measures Arrangement came into force:
- HKIAC issues Letters of Acceptance within 24 hours of receipt of a complete application;
- HKIAC has issued Letters of Acceptance in respect of 144 applications. All applications were made in arbitration proceedings that had already been commenced;
- Over 70% of the parties applying for interim measures are non-Mainland parties;
- Applications for interim measures were made to 44 different Mainland courts;
- Based on the information available, the average time taken by Mainland courts to issue a decision was 26 days from receipt of an application (the median time was 17 days);
- HKIAC is aware of 101 decisions issued by Mainland courts. In 96 of these decisions, the applications for preservation of assets were granted upon the applicant’s provision of security;
- The total value of assets requested to be preserved amounted to RMB 35 billion (approximately USD 4.7 billion).
Practical Advantages for Businesses
By virtue of the Interim Measures Arrangement, Hong Kong is the only international arbitration hub and one of the two jurisdictions (the other being Macau SAR) where parties can obtain interim measures directly through the Mainland courts. Coupled with the “Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between China Mainland and Hong Kong” which came into force on 19 May 2021 (“Supplemental Arrangement”), Hong Kong-seated arbitration proceedings offer unique advantages to parties in ensuring effective enforcement of the arbitral award. By virtue of the Supplemental Arrangement:
- simultaneous enforcement: parties may enforce the arbitral award simultaneously in Hong Kong and Mainland China, avoiding delays and time-bar risks (the time limit for enforcing an arbitral award is 2 years under Mainland Chinese law and 6 years under Hong Kong law);
- post-award preservation measures: since preservation orders granted under the Interim Measures Arrangement are not applicable after the arbitral award is issued, the Supplemental Arrangement fills in the gap by empowering the Mainland courts to grant post-award preservation measures upon application.
To fully utilise the advantages above, businesses are advised to designate Hong Kong as the seat of arbitration and one of the qualified arbitral institutions to administer the arbitration proceedings in the relevant arbitration clause.
Conclusion
Under the Interim Measures Arrangement, Hong Kong-seated arbitration offers unique advantages to Claimants to swiftly secure interim measures in Mainland China — a jurisdiction historically challenging for foreign parties to navigate.
As economic activities between other countries and Mainland China continue to grow, integrating Hong Kong-seated arbitration clauses into contracts would be beneficial to businesses to secure assets before or during the arbitral proceedings and to ensure effective enforcement upon issuance of the arbitral award.
CFN Lawyers LLP, with its expertise in international arbitration and a proven track record of helping clients navigate the complex cross-border legal landscape, is well equipped to assist you in international arbitration proceedings involving Mainland Chinese counterparties and securing your interests through interim measures and enforcement of arbitral awards, as well as advising you on the choice of a suitable arbitration clause and its legal implications.
Footnotes:
[1] “Qualified arbitral institutions” refer to:
- Hong Kong International Arbitration Centre;
- Hong Kong Maritime Arbitration Group;
- South China International Arbitration Center (HK);
- eBRAM International Online Dispute Resolution Centre;
- AALCO Hong Kong Regional Arbitration Centre;
- China International Economic and Trade Arbitration Commission Hong Kong Arbitration Center; and
- International Court of Arbitration of the International Chamber of Commerce – Asia Office.
[2] The Intermediate People’s Court of the place of residence of the Respondent or the place where the property or evidence is situated.
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