1st Edition
Comparative Analysis of Interim Measures – Interim Remedies (England & Wales) v Preservation Measures (China)
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.
Table of Contents
Part 1 - Introduction to the concepts in Book and Legal System and Procedural Law of England & Wales and China
Chapter 1: Introduction to Interim Measures in England & Wales and China
INTRODUCTION TO INTERIM MEASURES
Role of Interim Measures within a Civil Procedural System
Interim Measures in England & Wales
Interim Measures in China
Different Terminologies used for Interim Measures
Interim Measures and Cause of Action
Delays in Civil/Commercial Litigation & Interim Measures
ISSUES OF INTERIM MEASURES IN ARBITRATION
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 & 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 Measures
INTERIM REMEDIES IN ENGLAND & WALES
Equity, Equitable Remedies and Injunction
History of Injunctions
Injunctions as an Equitable Remedy
General Evolution of Interim Remedies in Modern Era
Evolution of Freezing Injunctions
Evolution of Interim Injunction
Evolution of Search Orders
Evolution of other Interim Remedies (including relevant to maritime disputes)
Interim Remedies and Arbitration in England & Wales
PRESERVATION MEASURES IN CHINA
Introduction to Preservation Measures in China
Evolution of Civil Procedure Law & 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 Evolution of Preservation Measures
Evolution of 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 Introduction of Preservation Measures in China
OTHER ISSUES WITH INTERIM MEASURES
Interim Measures as Commercial Litigation Tactics
Dispute of facts In Interim Measures & Interim Hearings
CONCLUDING REMARKS
Reasons for Comparing Interim measures – England & Wales v China
Arrangement of Chapters in this Book
A Tad of warning for Readers
Chapter 2: Legal System and Procedural Law in England & Wales
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
ALLOCATION OF CASES WITHIN THE HIGH COURT
POWERS OF JUDGES OF THE HIGH COURT TO GRANT INTERIM REMEDIES
COURT OF APPEAL AND UK SUPREME COURT
JURISDICTION
SERVICE OF ORIGINATING PROCESS
(i) Permission not required: service within the UK
(ii) Permission not required: service outside the UK
(iii) Permission required: 2.81 - 2.86
OBTAINING PERMISSION TO SERVE OUT OF THE JURISDICTION: 2.87 - 2.89
PROCEDURAL STAGE AT WHICH INTERIM REMEDIES CAN BE GRANTED: 2.90 - 2.94
PROCEDURE ON AN INTERLOCUTORY APPLICATION FOR AN INTERIM REMEDY: 2.95 - 2.97
WITHOUT NOTICE APPLICATIONS: 2.98 - 108
FULL AND FRANK DISCLOSURE: 2.109 - 2.117
UNDERTAKINGS: 2.118 - 2.124
COURT’S POWER TO ENFORCE INTERIM REMEDIES AND UNDERTAKINGS: 2.125 - 2.129
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 PRESERVAION 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 PRESERVAITON 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 Court’s Jurisdiction over Preservation Applications
Maritime Court’s 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 APPLICATION OF PRESERVATIONS
Overview of Security for Application of 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 (I) : 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 Behaviour and Parties
Fine and Detention Penalty
Criminal Penalty
DISCHARGE OF ORDERS
General Rules
An Applicant’s Liability
COMPENSATION: LEGAL REMEDY FROM SUBSTANTIVE LAW PERSPECTIVE
General Rules
Party Liable to Compensate an Injured Party
Difference between Procedural Remedy and Substantive Remedy
Annex 1
Annex 2
Part 2 - Interim Measures in Arbitration
Chapter 4: Interim Remedies In Support Of Arbitration
INTRODUCTION: 4.1
THE NEW YORK CONVENTION: 4.2 - 4.3
PART I OF THE ARBITRATION ACT 1996: 4.4 - 4.8
RELEVANCE OF ENGLISH LAW: 4.9 - 4.13
POWER OF ARBITRAL TRIBUNALS TO GRANT INTERIM REMEDIES: 4.14 - 4.15
ORDERS: 4.16 - 4.17
PROVISIONAL AWARDS: 4.18 - 4.20
LIMITATIONS OF THE POWER OF ARBITRATION TRIBUNALS: 4.21 - 4.26
POWERS OF THE ENGLISH COURT TO GRANT INTERIM REMEDIES IN RELATION TO ARBITRATION: 4.27
SECTION 44 OF THE 1996 ACT: 4.28 - 4.35
SECTION 44 AND NON-PARTIES: 4.36 - 4.39
STAY OF ENGLISH COURT PROCEEDINGS: 4.40 - 4.43
INTERIM ANTISUIT INJUNCTIONS IN SUPPORT OF ARBITRATION: 4.44 - 4.52
Chapter 4a: Interim Measures In Arbitration (China)
INTRODUCTION
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
Conflicts and Development of Jurisdiction in Non-Maritime Disputes
Maritime Courts’ Jurisdiction for Arbitral Preservation Applications
Emergency Arbitrators and Preservation Orders
TYPES OF PRESERVATION MEASURES IN ARBITRATION
JURISDICTION AND TYPES OF PRESERVATIONS IN THE CICC
PROCEDURE FOR APPLICATIONS
Procedural Step of Pre-arbitral Preservations in Practice
Procedural Step after Submitting an Application
Underlying Issues Affecting Preservation Applications
PRESERVATIONS FOR FOREIGN ARBITRATIONS IN CHINA
PRESERVATIONS FOR FOREIGN ARBITRATIONS IN CHINA (I): MARITIME ARBITRATION
Test case for Post-arbitral Maritime Preservation
Case Test for Pre-arbitral Maritime Preservation
Limitation of Property Preservation Measure in Maritime Disputes
PRESERVATIONS FOR FOREIGN ARBITRATIONS IN CHINA (II): MACAU AND THE MAINLAND
PRESERVATIONS FOR FOREIGN ARBITRATIONS IN CHINA (III): TAIWAN AND THE MAINLAND
PRESERVATIONS FOR FOREIGN ARBITRATIONS IN CHINA (IV): HONG KONG AND THE MAINLAND
Background
Types of Preservations
Jurisdiction Over HK Arbitral Preservations
Status Quo
ARBITRAL PRESERVATION DURING RECOGNITION AND ENFORCEMENT OF FOREIGN
ARBITRAL AWAWRDS
Part 3- Interim Measures for Property
Chapter 5: Freezing Injunctions
INTRODUCTION: 5.1
MAREVA INJUNCTIONS AND ASSET PRESERVATION ORDERS: 5.2 - 5.8
THE FREEZING INJUNCTION - ONE OF ENGLISH LAW’S "NUCLEAR WEAPONS": 5.9 - 5.11
FREEZING INJUNCTIONS AS SECURITY: 5.12 - 5.15
SOURCES OF LAW IN RELATION TO FREEZING INJUNCTION: 5.16 - 5.19
JURISDICTION AND DISCRETION: 5.20 - 5.22
(A) GOOD ARGUABLE CASE ON THE MERITS: 5.23 - 5.24
(B) RISK OF DISSIPATION: 5.25 - 5.29
(C) ASSETS TO BE CAUGHT: 5.30
(D) JUSTICE AND CONVENIENCE: 5.31
WORLDWIDE FREEZING INJUNCTIONS: 5.32 - 5.38
ANCILLARY ORDERS: 5.39 - 5.40
CHABRA INJUNCTIONS: 5.41 - 5.42
THE STANDARD FORM OF ORDER: 5.43 - 5.55
Chapter 6: Preservation Measure of Property in China
INTRODUCTION
Definition of Property Preservation and its Purpose
Applicable Laws
Definition of Preservation of Maritime Claims and its Purpose
Applicable Laws in Maritime Law Domain
FORMAT OF PRESERVATION APPLICATIONS
APPLICANTS AND RESPONDENTS OF APPLICATIONS
The Meanings of an Applicant and a Respondent
Information on an Applicant and a Respondent and their Identifications
THE SUBJECT MATTER OF APPLICATIONS: PROPERTY TO BE PRESERVED
Category of Property
New Development of Property to be Preserved
Requirements of Preserved Property
The Outside Party’s Preserved Property
The Limitation of Preserved Property
The Necessity of Preserved Property Valuation
Burden of Proof on Preserved Property Valuation
Approaches of Property Valuation
The Floating Value of Property to be Preserved
The Valuation of Excessive Property Preservation
PRE-ACTION PROPERTY PRESERVATIONS
Exact Information of Property in Applications
Substantive Prerequisites for Pre-action Preservations
Urgent Circumstances and Irreparable harms
Requirement of Security
Status Quo
The Time Limit of Rendering Orders and Mode of Trials
POST-ACTION PRESERVATION APPLICATIONS
Specific Clues of Property
Online Monitoring System for Property Information within China(I): Introduction
Online Monitoring System for Property Information within China (II):
Protection of Information
Online Monitoring System for Property Information within China(III):
Regional Online Monitoring System
Security (I): Requirement
Security (II): Exemptions from Providing Security
The Time Limit of Rendering Orders and Respondents’ Defence
The Possibility of Interim Hearing
PROTECTION OF THE RESPONDENT’S INTERESTS
Option of Multiple Properties
Use of Preserved Property
Sale of Preserved Property
Substitution of Property (Respondents’ Counter Security)
PROTECTION TO NON-PROFIT ENTITY
THE TIME LIMIT AND RENEWAL OF PRESERVATION ORDER
COMPENSATION CAUSED BY WRONGUL PROPERTY PRESERVATION
Liability Principle of Wrongful Application
Elements of Fault-based Liability
PROPERTY PRESERVATION FEES
Annex 1
Annex 2
Part 4 - Interim Measures for Conduct
Chapter 7: Interim Injunctions
INTRODUCTION: 7.1 - 7.3
THE COURT’S POWER TO GRANT INTERIM INJUNCTIONS: 7.4 - 7.9
AMERICAN CYANAMID: 7.10 - 7.12
Stage One - Serious Issue To Be Tried: 7.13 - 7.15
Stage Two - Adequacy Of Damages To Each Party: 7.16 - 7.24
Stage Three - Balance Of Convenience: 7.25 - 7.29
MANDATORY INTERIM INJUNCTIONS: 7.30 - 7.33
WHERE THE OUTCOME OF THE APPLICATION WILL DETERMINE THE OVERALL DISPUTE: 7.34 - 7.39
SPECIAL CASES WHERE THE AMERICAN CYANAMID TEST IS MODIFIED: 7.40
(I) Freedom Of Expression: 7.41
(Ii) Industrial Disputes: 7.42
(Ii) Public Bodies: 7.43
CASES WHERE INTERIM INJUNCTIONS ARE GENERALLY UNAVAILABLE: 7.44
Defamation: 7.45
Performance Bonds And Irrevocable Letters Of Credit: 7.46 - 7.51
CASES WHERE AMERICAN CYANAMID DOES NOT APPLY: 7.52 - 7.53
INTERIM ANTI-SUIT INJUNCTIONS: 7.54 - 7.61
Chapter 8: Preservation Measure of Behaviour in China
INTRODUCTION
Terminology
Evolution and History
ADVANCE ENFORCEMENT
Meaning and Evolution of Advance Enforcement
Scope of Application of Advance Enforcement
Requirements of Advance Enforcement
Reconsideration
‘Converse’ Behaviour Preservation
Advance Enforcement v Advance Judgment
Advance enforcement v Behaviour Preservation
BEHAVIOUR PRESERVATON MEASURES
Definition and Purpose of Behaviour Preservations
Definition and Purpose of Maritime Injunctions
Overview of Applicable Laws
Applicable Law of Intellectual Property Disputes
Applicable Law of Non-Intellectual Property Disputes
Format of the Preservation Applications
Meaning and Qualification of an Applicant
Meaning of Respondent
Scope of Behaviour Preservation Measures
Positive Effect (I): Behaviour Preservation Measures in Family Dispute
Positive Effect (II)
: Behaviour Preservation Measure in Commercial DisputesCurrent Issues(I): Lack of Unified Standard of Subject Matter
Current Issues (II): Confusion Between the Behaviour and Property Preservation Measures
Requirements for Behaviour Preservation Applications in Non-IP Disputes
Requirements for Urgent Behaviour Preservation Applications in IP Disputes
Requirement for Urgent Applications (I): Urgent Circumstances
Requirement for Urgent Applications (II): Irreparable Harms
Requirement for Urgent Applications (III):
Stabilization of RightsRequirement for Urgent Applications (IV):
Balance of Interests and Protection of Public InterestsRequirements for Non-urgent Post-action Applications
REQUIREMENT OF FURNISHING SECURITY
Rules Regarding Furnishing Security in IP and non-IP Disputes
Countersecurity Rules in IP and non-IP Disputes
INQUIRY PROCEDURE OR INTERIM HEARING AND RESPONDENT’S DEFENCE
Inquiry Procedure in Non-IP Disputes and Respondents’ Defence
Inquiry Procedure for Maritime Injunction and Respondents’ Defence
THE TIME LIMIT RENDERING POST-ACTION ORDERS
TIME LIMIT AND RENEWAL OF PRESERVATION ORDERS
First Type of Prescription of Time Limit
Second Type of Prescription of Time Limit
Renewal of Behaviour Preservation Order
COMPENSATION CAUsED BY WRONGFUL BEHAVIOUR PRESERVATIONS
COMPENSATION RULES IN IP DISPUTES
The Retrospective Effect of Invalidity of Patent Right in IP Compensation
Compensation Rules in Non-IP Disputes
BEHAVIOUR PRESERVATION FEES
Annex 1
Annex 2
Annex 3
Annex 4
Annex 5
Part 5 - Interim Measures for Evidence
Chapter 9: Search Orders
INTRODUCTION: 9.1 - 9.9
SOURCES OF LAW IN RELATION TO SEARCH ORDERS: 9.10 - 9.13
SECTION 7 OF THE CIVIL PROCEDURE ACT 1997: 9.14 - 9.15
DISCRETIONARY REMEDY: 9.16 - 9.17
STAGE AT WHICH A SEARCH ORDER CAN BE GRANTED: 9.18
SEARCH ORDER IN SUPPORT OF SUBSTANTIVE PROCEEDINGS ELSEWHERE: 9.19 - 9.21
PURPOSE OF SEARCH: 9.22 - 9.24
WHO CAN APPLY? 9.25
WHICH PREMISES CAN BE SEARCHED? 9.26 - 9.26
AGAINST WHOM CAN A SEARCH ORDER BE GRANTED? 9.28 - 9.32
PERSONAL JURISDICTION OVER THE RESPONDENT: 9.33 - 9.35
SEARCH PARTY: 9.36 - 9.38
SCOPE OF THE SEARCH: 9.39 - 9.40
RESPONDENT’S DUTY TO PROVIDE ASSISTANCE: 9.41
THE PRIVILEGE AGAINST SELF-INCRIMINATION: 9.42 - 9.44
APPLYING FOR A SEARCH ORDER: 9.45 - 9.47
UNDERTAKINGS: 9.48 - 9.53
THE FORMAT OF THE SEARCH ORDER: 9.54 - 9.56
EXECUTING THE SEARCH ORDER: SERVICE: 9.57 - 9.61
EXECUTING THE SEARCH ORDER: THE SEARCH: 9.62 - 9.65
IMAGING ORDERS: 9.66 - 9.69
Chapter 10: Preservation Measure of Evidence in China
INTRODUCTION
APPLICABLE LAWS
Applicable Laws for General Disputes
Applicable laws for Intellectual Property Disputes
Applicable Laws for Maritime Disputes
DEFINITION AND PURPOSE
Definition and Purpose of Evidence Preservation Measures
Definition and Purpose of Maritime Evidence Preservation
FORMAT OF PRESERVATION APPLICATIONS AND KEY POINTS
An Applicant and A Respondent
Evidence to be Preserved
Measure of Preservation
PRELIMINARY PROCEDURAL EXAMINATION
Test of Correlation and Necessity
Case Test and Status Quo
Tests in SMPL 1999 regime
PRE-ACTION EVIDENCE PRESERVATION AND ALTERNATIVE REMEDIES
Requirement of ‘Urgent Circumstances’
The Principle of The Minimum Impact
Status Quo for Pre-action Applications in Courts
Alternative Remedy(I): Evidence Preservation by Notary Public Office
Alternative Remedy(II):Online Preservation by way of Blockchain Technology
TIME LIMIT OF POST-ACTIN APPLICATIONS
Statutory Time Limit
Agreed Time Limit
REQUIREMENT FOR POST-ACTION EVIDENCE PRESERVATIONS
General Requirements
Requirements for IP Evidence Preservation and Its Understanding
Other Consideration and Underlying Issue
DOCUMENTARY EVIDENCE DISCLOSURE ORDER
General Rule
The Extension of The Documentary Disclosure Order in IP Disputes
COLLECTING OF EVIDENCE BY COURTS
Courts’ Power to Collecting of Evidence on its own Initiative
Maritime Courts’ Power to Collecting of Evidence
Collecting of Evidence on Party’s Application
SECURITY FOR EVIDENCE PRESERVATION APPLICATIONS
Rule of Security for IP and Maritime Pre-action Application
Exception for Furnishing Security for Pre-action and Post-action Application
Amount of Security
TIME LIMIT OF RENDERING POST-ACTION ORDERS
TIME LIMIT OF EVIDENCE PRESERVATIN ORDERS
DISCHARGE OF EVIDENCE PRESERVATION ORDERS
COMPENSATION CAUSED BY WRONGFUL EVIDENCE PRESERVATION
Liability Principle
Principle of Common Evidence
Causative link and Burden of Proof
Actual Property Damages
EVIDENCE PRESERVATION FEES
EVIDENCE PRESERVATION FEES
Annex 1
Annex 2
Annex 3
Part 6 - Comparative Analysis of Interim Measures in two Jurisdiction
Chapter 11: Comparative Analysis of Interim Measures on Visible & Invisible Factors – England & Wales v. China
OVERVIEW OF THE CHAPTER
Summary
Major Conclusions after Comparative Analysis
COMPARATIVE ANALYSIS OF INTERIM MEASURES ON VISIBLE FACTORS
Visible Factors
Warning on Comparative Analysis pursued on Visible Factors
Comparative Analysis of Working Methods of Courts for seeking Interim Measures
Comparative Analysis – Freezing Orders (England & Wales) v. Preservation of Property Measures (China)
Comparative Analysis – Interim Injunction (England & Wales) v. Preservation of Behaviour Measures (China)
Comparative Analysis – Search Orders (England & Wales) v. Preservation of Evidence Measures (China)
THEORY RELEVANT TO COMPARATIVE ANALYSIS OF INTERIM MEASURES
Difference between Visible and Invisible Factors
Warning to Readers
Comparative Procedural Law relevant to Interim Measures
Discretionary Power & Human Angle – A Key factor relevant to Interim Measures
INVISIBLE FACTORS AND CONTEXTS – COMPARATIVE ANALYSIS OF ITS INFLUENCE ON SEEKING INTERIM MEAUSURES FROM COURTS
Effects on Legal Practice
Invisible Factor of Historical Evolution of Substantive and Procedural Law
Invisible Factor of Historical Evolution of Injunctions and Preservation Measures
Invisible Factor of Jurisprudence
Invisible Factor of Legal Philosophy of Civil Litigation
Invisible factor of Philosophy of finding truth in Judicial practice
Training of Judges
Invisible Factor of Concept of Standards of Proof
Standard of Proof at the time of application
During Interim Hearings
Invisible Factor of Discretionary Power of Judges
CONCLUDING REMARKS
Biography
Vivek Jain
Dr. Capt. Vivek Jain is currently a Director (Marine Services) of a well-renowned firm in Singapore, where he handles and pursues commercial and maritime international arbitrations in various International forums. He also handles large claims on behalf of clients of his firm on various marine insurance products. He has also been appointed as arbitrators on various commercial and maritime disputes and is also a Committee Member of arbitration institutions for number of years. As a result of nature of his work that involves cross-border litigation/arbitration work, he has developed an expertise in Comparative Law backed by pursuing Ph.D. from prestigious CUPL, Beijing in the topic of Comparative Analysis of Court’s Pre-judgment Power in England & Wales and China. He has worked for many years in London, Shanghai, Hong Kong, Singapore in law firm and insurance companies as a lawyer.
He has qualified as a Barrister in England & Wales. He is also a Master Mariner (unlimited) UK and have worked on merchant ships including tankers and bulk carriers. He also taught Commercial and Maritime Law in University of Plymouth for a few years and regularly lectures on Comparative Law, Commercial Law & Maritime Law across the globe.
Over the years, he has pursued LL.B. (Hons.), LL.M. (Maritime Law) with merit from University of London, B.V.C. (Very Competent) (London), M.B.A. (Norway), PGC in Compliance (Singapore) PGCE (Singapore), B.Sc. (N. Sc.) (India) from a very selective & prestigious T.S. Rajendra College of Nautical Science. He has recently authored a book ‘Common Law v Chinese Law’, and edited a book, Imprints of History, Religions & Revolutions on Law – Perspectives from Prominent Jurisdictions.
He would like to be called as a ‘problem solver’ by his clients.
Thomas Macey-Dare
Thomas Macey-Dare QC is an English commercial barrister and a member of Quadrant Chambers in London. He specialises in shipping, shipbuilding, energy, international trade, insurance and international arbitration. He is recognised as a leading practitioner by the Legal 500 in Commodities and Shipping, and by Chambers & Partners in Shipping & Commodities. He represents shipowners, commodity traders, shipyards, underwriters, salvors, energy companies, banks and other commercial clients, in the Business & Property Courts of England and Wales (Commercial Court, Admiralty Court & Chancery Division), the Court of Appeal, and international commercial arbitrations. He is particularly skilled at handling cases involving complex commercial transactions and technical expert issues. He also specialises in emergency applications for interim relief, including freezing and antisuit injunctions.
Tom was educated at Stonyhurst College, the University of Cambridge (BA (Hons) 1990, LLM 1991, MA 1994), Cornell Law School (LLM 1992), and the Inns of Court School of Law. He was called to the Bar of England and Wales in 1994 and appointed Queen’s Counsel in 2018. He was admitted as an attorney in the State of New York in 1995. He is a registered foreign lawyer with the Singapore International Commercial Court and a member of the Middle Temple advocacy training faculty, the Commercial Bar Association and the New York State Bar Association.
Tom has written, co-authored and contributed to a number of legal books and articles, including Atkin’s Court Forms, Vol 6(2): Arbitration (Lexis-Nexis Butterworths, 1998-2016), and Marsden & Gault on Collisions at Sea (14th Edn, Sweet & Maxwell, 2016).
Shengnan Jia
Dr Shengnan Jia is a partner at a well-known Tahota Law Firm (Legal 500) based out of Beijing. She specialises in commercial law and maritime law. Over the years, she has disposed of many cases in the Supreme People’s Court, High courts of different provinces in China and in various International arbitration forums. Dr. Jia holds memberships of professional arbitration forums such as HIAC, ZCIA (China), LMAA (London), CAS (Switzerland), EDAC (Turkey) and had been invited as a Chinese expert witness to submit an Expert Report to LCIA.
Dr Jia obtained her PhD degree in Commercial Maritime Law at the City Law School, University of London along with the first LLM in Civil and Commercial Law at Graduate School of Chinese Academy of Social Sciences and the second LLM in Maritime Law at Lund University and World Maritime University, Sweden. She had completed LLB in Law at Beijing Union University.
She had taught English contract law and land law as a graduate teaching assistant at the City Law School and also is a professional supervisor at prestigious University CUPL, Beijing, and an adjunct lecturer at Ankara University Turkey. She has contributed chapters to many legal profession books, such as Maritime Law in Motion (Springer), New Trends in Maritime Law: Maritime Liens, Arrest of Ships, Mortgages and Forced Sale (Thomson Reuters). She has also organized a few international commercial law and maritime law conferences in London and online seminars. Based on her practical experience and academic background, she has sufficient knowledge of comparative law, the legal culture and legal philosophy. In addition, Dr Jia founded China-Europe Commercial Collaboration Association (non-profit organization) aiming to promote collaboration between stakeholders along with founding Journal of Transnational and Chinese Maritime Law (ISSN: 2634-4777), Journal of Transnational and Chinese Commercial Law(ISSN: 2634-8209).
