Comparative analysis of interim measures : interim remedies (England and Wales) v preservation measures (China) / Vivek Jain, Thomas Macey-Dare, and Shengnan Jia.

Format:

Book

Author/Creator:

Jain, Vivek (Lawyer and Merchant mariner), author.

Macey-Dare, Thomas, author.

Jia, Shengnan, author.

Series:

Contemporary commercial law.

Contemporary Commercial Law

Language:

English

Subjects (All):

Provisional remedies--China.

Provisional remedies.

Provisional remedies--England.

Physical Description:

1 online resource (695 pages)

Place of Publication:

Oxon, UK ; New York, NY : Routledge, Taylor & Francis Group, [2022]

Summary:

"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"-- Provided by publisher.

Contents:

Cover

Half Title

Series Page

Title Page

Copyright Page

Table of Contents

List of figures

List of tables

Preface

Acknowledgements

Table of Chinese Cases

Table of Chinese Legislations and Local Courts' Guidance Documents

Table of Cases

Table of Legislation

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

Wales and China

Chapter 1 Introduction to Interim Measures in England &amp

Introduction to Interim Measures

Role of Interim Measures within a Civil Procedure System

Interim Measures in England &amp

Wales

Interim Measures in China

Different Terminologies Used for Interim Measures

Interim Measures and Cause of Action

Delays in Civil/Commercial Litigation and Interim Measures

Issues of Interim Measures in Arbitrations

Interim Remedies/Preservation Measures in Arbitration

Issues as to the Enforceability of Interim Remedies/Preservation Measures Granted by Tribunal

Relevant Ecosystem for Interim Measures

Need and Role for Interim Measures in the Current Business Environment

Current Business Environment

Additional Reasons for Granting Interim Measures

Utility of Interim Remedies/Preservation Measures

Doctrines Governing Interim Measures

Fundamental Principles of Interim Measures

Judges' Primary Focus before Rendering Interim Remedies/Preservation Remedies

Introduction to Interim Remedies in England &amp

Interim Remedies in England &amp

Equity, Equitable Remedies and Injunction

History of Injunctions

Injunctions as an Equitable Remedy

General Evolution of Interim Remedies in the Modern Era

Evolution of Freezing Injunctions

Evolution of Interim Injunctions

Evolution of Search Orders.

Evolution of Other Interim Remedies (Including Relevant to Maritime Disputes)

Interim Remedies and Arbitration in England &amp

Preservation Measures in China

Introduction to Preservation Measures in China

Evolution of Civil Preservation Procedure and Preservation Measures

Evolution of Civil Procedure Law and Preservation Procedures

Evolution of Property Preservation Measures - The First Stage (1949-1982)

Evolution of Property Preservation Measures - The Second Stage (1982-2012)

Evolution of Behaviour Preservation Measures

Maritime Injunctions

Evolution of Evidence Preservation Measures

Relevant Academic Debates on the Evolution of Preservation Measures

Evolution of Property Preservation Measures - The Rapid Pace Stage (2012-Present)

SPC's Interpretations and Local Courts' Guidance Documents

Preservation Measures and Arbitration in China

Closing Remark on the Introduction of Preservation Measures in China

Other Issues with Interim Measures

Interim Remedies as Commercial Litigation Tactics

Dispute of Facts in Interim Measures and Interim Hearings

Concluding Remarks

Reasons for Comparing Interim Measures - England &amp

Wales v China

Arrangement of Chapters in This Book

A Small Warning for Readers

Chapter 2 Legal System and Procedural Law in England &amp

Sources of English Law

Statutory Law

Judge-Made Law

International Conventions

Key Statutes on Interim Remedies

The Civil Procedure Rules (CPR)

Civil Procedure Basics

Terminology: Interim, Interlocutory and Final

Terminology: Temporary, Permanent and Perpetual

CPR Part 25: "Interim Remedies and Security for Costs"

English Civil Courts

Organisation of the High Court

Allocation of Cases within the High Court

Power of Judges of the High Court to Grant Interim Remedies.

Court of Appeal and UK Supreme Court

Jurisdiction

Service of Originating Process

Obtaining Permission to Serve out of the Jurisdiction

Procedural Stage at which Interim Remedies Can Be Granted

Procedure on an Interlocutory Application for an Interim Remedy

Without Notice Applications

Full and Frank Disclosure

Undertakings

Court's Power to Enforce Interim Remedies and Undertakings

Chapter 3 The Legal System and the General Rules for Preservation Measures in China

Introduction

The Civil Litigation Procedure System of China

Sources of Law Applicable for Preservation Measures

Legislation

Legislation (I): General Laws

Legislation (II): Special Laws

Regulations

Judicial Interpretations and Other Judicial Documents

Guiding Case and Reference Case

The Chinese Court System​

Overview of the Court System

Preservations in the Court System

Hierarchical Trial System

Tier System in the Context of Preservation Measures

Preservation Procedural Steps in China​

Meaning of Pre-Action Preservation Application

Meaning of Post-Action Preservation Application

General Procedural Steps for Preservation Measures

Online Preservation System of the People's Court

Various Types of Scenarios in the Context of Preservation Measures

Jurisdiction of Courts for Civil Preservation Applications

Court Tier Jurisdiction for Preservation Applications

Tier Jurisdiction of Domestic Cases

Tier Jurisdiction of Foreign-Related Cases

Tier Jurisdiction of Specialised Courts: Exclusive Jurisdiction

Territorial Jurisdiction to Consider for Preservation Applications

Agreed Jurisdiction Clauses in Relation to Preservation Applications

Overseas Cases - Chinese Courts' Jurisdiction over Preservation Applications.

Maritime Courts' Jurisdiction over Preservation Applications for Overseas Cases

Choice of Venue if There Are Two Competent Courts

Jurisdiction for Preservation Applications after Completion of the First Instance

Jurisdiction after Making an Effective Judgment or Award

Application and Enforcement of Court Orders of Macau, Hong Kong and Taiwan

Macau and the Mainland

Hong Kong and the Mainland

Taiwan and the Mainland

Format of the Preservation Applications

Written Format or Others

Requirements as to Translation

Requirements as to Notarisation and Legalisation

Flexible Requirements as to Notarisation and Legalisation in IP Disputes

Security for Applications for Preservations

Overview of Security for Applications for Preservations

Security for Maritime Preservation Measure Applications

Countersecurity of the Respondent

Types of Security or Countersecurity

Property Security(I): Scope of Security

Property Security (II): Nature and Steps of Property Security

Property Security (III): Legal Effect of Property Security

Cash Security (I): Introduction

Cash Security (II): Payment Method

Cash Security (III): Nature of Cash Security

A Letter of Guarantee (Credit Guarantee) (I): Introduction

A Letter of Guarantee (II): Lack of Unified Rule

A Letter of Guarantee (III): Development of Credit Guarantee

A Letter of Guarantee (IV): Maritime Law Domain

A Letter of Guarantee (V): Online Guarantee

Exemptions from Providing Security

The Scope of Application of Preservation Security Guidance

Legal Costs in Preservation Applications

General Legal Costs

Insurance Fee for Security of Preservation

Lawyer's Fee

The Burden of Legal Costs and Application Fees

The Time Limit for Rendering Orders

Legal Remedies against an Order (I): The Subject of Remedies.

Concept of Interested Party and Outside Party

Legal Remedies against an Order (II): Reconsideration

Reconsideration

Appellate Remedy

Claims of the Interested Party

Legal Remedies against a Preservation Order (III): Raising Objection

Procedural Remedy of Objection to Enforcement of a Preservation Order

Procedural Remedy of Objection to Subject Matter of a Preservation Order

Sanctions for Not Obeying Preservation Orders

Sanctioned Behaviours and Parties

Fine and Detention Penalty

Criminal Penalty

Discharge of Orders

General Rules

An Applicant's Liability

Compensation: Legal Remedy from Substantive Law Perspective

Party Liable to Compensate an Injured Party

Difference between Procedural Remedy and Substantive Remedy

Annex 1

Application for Reconsideration

Annex 2

Application for Discharging the Preservation Order

Part 2 Interim Measures in Arbitration

Chapter 4 Interim Remedies in Support of Arbitration

The New York Convention

Part I of the Arbitration Act 1996

Relevance of English Law

Power of Arbitral Tribunals to Grant Interim Remedies

Orders

Provisional Awards

Limitations of the Power of Arbitral Tribunals

Powers of the English Court to Grant Interim Remedies in Relation to Arbitration

Section 44 of the 1996 Act

Section 44 and Non-Parties

Stay of English Court Proceedings

Interim Antisuit Injunctions in Support of Arbitration

Chapter 4a Interim Measures in Arbitration (China)

Jurisdiction over Arbitral Preservation Measures in China

Legal Foundation of Chinese Exclusive Jurisdiction

Tier Jurisdiction in Non-Maritime Disputes

Domestic Arbitration in Non-Maritime Disputes

Foreign-Related Arbitration in Non-Maritime Disputes.

Conflicts and Development of Jurisdiction in Non-Maritime Disputes.

Notes:

Description based on print version record.

ISBN:

1-00-300031-2

1-003-00031-2

1-000-57967-0

9781003000310

OCLC:

1311241388