Chinese courts began to issue anti-suit injunctions (ASIs) in 2020 against litigants in foreign courts that had filed lawsuits to obtain a FRAND rate setting. Although these ASIs are a legal “transplant” from common law countries, they may also be viewed as “false friends” with significant differences from the jurisdictions from which they were imported. Several distinct vectors stand out: (a) China’s ASI practice and Chinese industrial policies are closely integrated into China’s domestic efforts to become an innovative power and standard essential patent (SEP) litigation norm setter; (b) China’s ASI efforts are part of a continuum of decades-long efforts to exert greater international influence, including in “judicial sovereignty” and global FRAND rate setting; and (c) the lack of transparency around China’s ASI practices, including the small and incomplete cohort of published cases, an apparent slow-down in recent ASI decisions, and Chinese traditions of experimentation in intellectual property (IP) legislation and practice, make it difficult at this time to determine how China’s ASI regime will further evolve into a system that is more compatible with other countries. This chapter more generally contributes to discussions around the appropriability of IP-related legal transplants into China by proposing that the differences between Chinese practices and practices in foreign countries may often be more significant than surface similarities.

This chapter will address the topical issue of provisional measures in international arbitration as well as its recent offspring, namely emergency arbitration procedures. The aim of this chapter is to understand the historical background of such measures and procedures, their impact on the evolution of domestic legislations with respect to international arbitration, their integration and evolution in arbitration rules as well as their nature. The chapter will thus also address the power of the arbitrator to grant such measures, the type of measures that can be granted, as provisional measures or by an emergency arbitrator, as well as the procedural requirements and substantial conditions necessary to obtain such interim measures. Finally, the issue of enforcement of such measure will also be addressed.

The occurrence of parallel proceedings involving the same dispute and the same parties in international commercial arbitration is a well known phenomenon. In particular, this scenario arises when two identical proceedings regarding jurisdictional matters and/or the merits of the case are pending at the same time before a state court and a foreign arbitral tribunal, or before two arbitral tribunals seated in different jurisdictions. In order to prevent the undesirable effects of the proliferation of proceedings (namely the risk of lengthy and costly proceedings and the risk of irreconcilable decisions), different tools can be deployed. The analysis of the techniques most frequently employed to address this problem shows that many of the procedural mechanisms available are ill-suited, given the specificity of international commercial arbitration. Hence, the undisputed emergence of international arbitration as a reliable and effective alternative to court litigation and the judicial policy of minimal interference with the arbitration process suggest that a pro-arbitration approach in dealing with the lis pendens issue should be embraced. As regards the situation of lis alibi pendens before a state court and a foreign arbitral tribunal, this entails the prioritarization of arbitral tribunals over national courts as long as a dispute covered by a prima facie existent arbitration agreement is brought before an arbitral tribunal. Conversely, in a scenario in which proceedings are already pending before a national court, it is suggested that a (foreign) arbitral tribunal should be entitled to stay proceedings in order to avoid protracted and expensive parallel litigation, although it is certainly not to bound to do so, at least in the absence of a joint request by the parties or in presence of a clear waiver of the arbitration agreement. A comparable flexibility should also guide the solution to be adopted in parallel arbitral proceedings, where the tribunal second seized should be free to act according to case management considerations.

This chapter recognises the practical reality that in high-value, cross-border commercial litigation it is frequent to see claimants making applications for more than one type of interim relief. In addition to a freezing injunction and an ancillary disclosure order, the complexity of the facts and the defendant’s conduct may lead the claimant to apply for an anti-suit injunction, an anti-enforcement injunction, a Norwich Pharmacal order and/or a receivership order. It is suggested that this potential for a ‘kitchen sink’ approach to interim relief raises concerns about the financial pressure on defendants, the pressure on the English courts, and the consistency of the courts’ reasoning relating to the extraterritorial scope of interim relief. The significance of taking into account the pressure on the courts cannot be underestimated as the potential for delays resulting from interim relief may undermine access to justice. The chapter examines the relationship between freezing injunctions and other types of interim relief.