As enacted

Commentary · As enacted

Silence is not a grant of power: emergency arbitrators in China-seated arbitrations

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Silence Is Not a Grant of Power: Emergency

Arbitrators in China-Seated Arbitrations

In Zhejiang Crystal-Optech Co Ltd v Moveon Technologies Pte Ltd [2026] SGHC 186, the General

Division of the High Court of Singapore (High Court) set aside an order (Enforcement Order) granting permission to enforce an interim arbitral award issued by an emergency arbitrator in a China

International Economic and Trade Arbitration Commission (CIETAC) arbitration seated in the People’s

Republic of China (China). On the available expert and factual evidence before it, the High Court found that the emergency arbitrator had no power to grant the interim award under the applicable law, namely,

Chinese law. Nor was any such power conferred by agreement of the parties.

WongPartnership acted for the liquidators of the joint venture company formed by the claimant and respondent, and advised the liquidators on a settlement agreement that was the subject of the interim arbitral award. The joint venture company did not participate in the application by the respondent to set aside the Enforcement Order. Accordingly, the views and observations in this update are not to be attributed to the liquidators of the joint venture company.

Background

In January 2022, the claimant (Zhejiang Crystal-Optech Co Ltd) and the respondent (Moveon

Technologies Pte Ltd) formed a joint venture company in Singapore and entered into a Cooperation

Framework Agreement (CFA) and a Joint Venture Agreement (JVA), each dated 7 October 2021.

Under both the CFA and the JVA, disputes were to be referred to the Shanghai Branch of CIETAC for arbitration in accordance with the laws and regulations of China. The joint venture company was wound up in March 2024, and its liquidators later entered into a settlement agreement admitting the respondent’s proof of debt in the sum of S$19,423,680.

54.

In May 2025, the liquidators obtained an order from the High Court that they be permitted to enter into a compromise with the respondent on the terms set out in the settlement agreement (Approval Order).

The claimant’s attempt to set aside the Approval Order was subsequently dismissed in November 2025.

In July 2025, the claimant applied for emergency arbitration with the Shanghai Branch of CIETAC and sought the following “emergency interim relief”: (a) that the emergency arbitrator order the respondent to maintain the status quo in relation to its disputed proof of debt by not receiving any dividend payouts pending the final arbitral award; and (b) further or in the alternative, that the emergency arbitrator order both the claimant and respondent to procure and ensure the suspension of the joint venture company’s winding up proceedings until the conclusion of the arbitration proceedings. On 12 August 2025, the emergency arbitrator issued an interim award granting the first interim relief sought. The claimant subsequently obtained permission from the High Court to enforce the interim award.

Arbitration

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The respondent applied to set aside the Enforcement Order on four grounds, namely that:

(a)

It was unable to present its case before the emergency arbitrator;

(b)

The interim award, which allegedly concerned matters between the respondent and the joint venture company, dealt with a difference that was not contemplated by or fell outside the terms of the submission to arbitration, which instead pertained to disputes between the respondent and the claimant (Scope of Submission Ground);

(c)

The interim award concerned matters that were not arbitrable; and

(d)

Enforcement of the interim award would be contrary to public policy.

The High Court’s Decision

The High Court allowed the respondent’s application on a single, determinative ground: the emergency arbitrator did not have the power to issue the interim award, and in purporting to do so, exceeded the scope of the submission to arbitration under section 31(2)(d) of the International Arbitration Act 1994, i.e., the Scope of Submission Ground.

The applicable law under Article 23(2) is the law of the seat; it must positively confer the power that the emergency arbitrator purports to exercise

Article 23(2) of the CIETAC Arbitration Rules (CIETAC Rules) (Article 23(2)) provides as follows:

In accordance with the applicable law or the agreement of the parties, a party may apply to the

Arbitration Court for emergency relief pursuant to the CIETAC Emergency Arbitrator Procedures

(Appendix III). The emergency arbitrator may decide to order or award necessary or appropriate emergency measures. The decision of the emergency arbitrator shall be binding upon both parties.

Article 23(2) therefore applies in either of two situations: (a) where the application for emergency relief to an emergency arbitrator accords with the applicable law; or (b) where such an application accords with the parties’ agreement.

The High Court held that Chinese law, being the law of the seat of the arbitration, was the applicable law for the purposes of Article 23(2) of the CIETAC Rules.

It rejected the claimant’s argument that the law of the place of enforcement (i.e., Singapore law) should also be considered, emphasising that the law governing whether an arbitral tribunal has the power to make an order is distinct from the law governing whether that order is enforceable.

The High Court also declined to place weight on the claimant’s expert’s reliance on his own experience as an emergency arbitrator in three CIETAC cases, in which he said he had considered whether interim measures would be enforceable in the jurisdiction where enforcement was sought. Crucially, neither the claimant nor its expert adduced any documentary evidence in support of these claims, including evidence as to the type of interim measures ordered, the reasons for those decisions, or whether the measures were subsequently recognised or enforced.

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Chinese law confers power to order preservation measures on the Chinese courts alone

The High Court then considered the experts’ evidence on Chinese law and made the following determinations:

(a)

Scope of the Chinese law on preservation measures: The High Court accepted the respondent’s expert’s evidence that property, evidence and conduct preservation measures are the exclusive preserve of the courts in China.

In particular, the High Court noted that the preservation provisions in China’s Arbitration Law require the arbitration commission to submit applications for property or evidence preservation measures to the relevant courts in China. Article 103 of the Civil Procedure Law similarly sets out the power of the relevant court in China to order such measures. The High

Court therefore accepted the respondent’s expert’s view that arbitral tribunals (and emergency arbitrators) are not conferred any power under Chinese law to order property, evidence or conduct preservation measures.

(b)

The Chinese legislative policy on tribunal-ordered interim measures: The High Court also found that the legislative history in China supported a deliberate legislative policy against tribunal- (or emergency arbitrator-) ordered interim measures.

In particular, China had stated in its comments to the UNCITRAL Working Group II’s 39th session that Chinese Law has not accorded the arbitral tribunal the power to order preservative measures, nor the power to order interim measures or issue preliminary orders. While the 2021

draft version of China’s revised arbitration law included provisions on the application, types and enforcement of interim arbitration measures, these provisions on interim measures were ultimately not included in China’s Revised Arbitration Law.

(c)

The effect of silence of the lex arbitri on tribunal-ordered interim measures: The High

Court held that the silence of Chinese law on the conferral of power of arbitral tribunals and emergency arbitrators to render interim measures cannot be construed as a grant of jurisdiction.

Adjudicative authority must be grounded in clear statutory authorisation, and the absence of this renders the emergency arbitrator’s interim award invalid.

(d)

Academic commentary: The High Court also found that its decision on the unavailability of tribunal-or emergency arbitrator-ordered interim measures in Chinese law is supported by academic commentaries. In this regard, the High Court cited the following works:

(i)

Gary B Born, International Commercial Arbitration (Kluwer Law International, 3rd ed,

2021), where China is identified as a jurisdiction in which local legislation “still provides that the granting of provisional measures is reserved exclusively to local courts, which are authori[s]ed to issue provisional relief in aid of arbitration.”

(ii)

Cameron Sim, Emergency Arbitration (OUP, 2021), where it states that “China is an example of a jurisdiction in which a ‘restrictive approach’ under which arbitral tribunals cannot grant interim measures”. The High Court also noted that a similar view is expressed in Julient Fouret and Christophe Seraglini, “Provisional Measures by

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Partnerships Act 2005.

Arbitrators and Emergency Arbitrators” in Stefan Kröll, Andrea K Bjorkland and Franco

Ferrari (eds), Cambridge Compendium of International Commercial and Investment

Arbitration (CUP, 2023).

(iii)

Eckart Brödermann, CIETAC Arbitration Rules 2024: Article-by-Article Commentary

(Kluwer Law International, 2024), where it states that Art 23(2) of the CIETAC Rules “do not apply to arbitration proceedings seated in the People’s Republic of China, since

[China’s Arbitration Law] stipulates that the Chinese courts are responsible for injunctive relief”.

The High Court thus concluded that, for the purpose of Article 23(2) of the CIETAC Rules, the

“applicable law” refers to the law of the seat of the arbitration (i.e., Chinese law in this case). For an application to be made in accordance with the applicable law, that applicable law would need to confer the power that a tribunal or an emergency arbitrator purport to exercise.

In the case of China, the power in question is granted only to courts, not arbitral tribunals. Accordingly, the claimant could not rely on the first limb of Article 23(2) of the CIETAC Rules.

Deemed consent to institutional rules is not the distinct agreement of the parties that Article 23(2) requires

With regard to the second limb under Article 23(2) of the CIETAC Rules (i.e., a party may apply for emergency relief in accordance with “the agreement of the parties”), the High Court held that what is required is a clear, express agreement between parties to allow the emergency arbitrator to order interim measures.

The claimant’s expert was of the view that the parties need not expressly agree to apply the rules on interim measures, and that it is sufficient that parties are deemed to have consented to the CIETAC

Rules. The respondent’s expert, however, submitted that clear, express agreement between parties is required to allow the emergency arbitrator to order interim measures.

The High Court accepted the respondent’s expert’s approach, noting that the fact that Article 23(2)

refers to the parties’ agreement indicates that there must be a distinct agreement by the parties over and above agreeing to the rules. Deemed consent to the CIETAC Rules alone is insufficient to amount to the requisite agreement that an emergency arbitrator can grant interim measures.

Notwithstanding the above, the High Court expressed reservations about the respondent’s expert’s argument that if the lex arbitri does not authorise the granting of interim measures by an arbitral tribunal or emergency arbitrator, the parties’ agreement to apply the CIETAC Rules cannot cure that absence of statutory power.

In this regard, the High Court noted that Article 23(2) of the CIETAC Rules provides for either the applicable law or the parties’ agreement to serve as the basis for a party’s application for emergency relief from an emergency arbitrator. While parties cannot agree to override a statutory prohibition contained within the lex arbitri on the measures that may be ordered by an arbitral tribunal or an emergency arbitrator, that does not necessarily mean that the parties’ express agreement, as opposed to mere deemed consent to the CIETAC Rules, cannot cure a situation where the lex arbitri is silent on

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the granting of interim measures. This would be consistent with the concept of party autonomy that parties may agree to confer on the arbitrator “any power they consider appropriate except such as may be contrary to the mandatory provisions of the applicable law of the arbitration”.

The High Court also noted that various academic commentaries have adopted a different approach, namely that an agreement to arbitrate using arbitration rules permitting emergency arbitration should mean that parties have expressly, or at least impliedly, agreed that the arbitral tribunal have the authority to grant interim measures. However, the High Court took the view that whether the parties’

agreement to institutional arbitral rules per se should be taken to amount to an agreement on the arbitrator’s power to issue interim measures depends on the wording of each institutional arbitral rules.

In the present case, the respondent’s expert evidence was that Article 23(2) of the CIETAC Rules was introduced to account for cases administered by CIETAC which involved the application of foreign law, or the laws of Hong Kong, Macau or Taiwan, and did not necessarily mean that an emergency arbitrator appointed in a China-seated arbitration would have the authority to issue interim measures.

In this case, the parties did not agree, whether in the arbitration clauses or elsewhere, to confer on the emergency arbitrator the power to grant interim measures. Accordingly, the High Court held that the emergency arbitrator did not have the power to grant the interim award and ultimately set aside the

Enforcement Order.

Key Takeaways

This decision provides important guidance on applications regarding the enforceability of Chinese interim arbitral awards in Singapore and other jurisdictions, including the type of evidence that is required to support such an application. Lessons can be drawn as to how an arbitration clause providing for China-seated arbitrations ought to be drafted to ensure that interim awards will be enforceable in Singapore. In particular, the arbitration clause should expressly provide for the arbitral tribunal or emergency arbitrator to have the power to grant interim measures.

If you would like information and/or assistance on the above or any other area of law, you may wish to contact the Partner at WongPartnership whom you normally work with or any of the following Partners:

CHAN Hock Keng

Co-Head – Commercial & Corporate

Disputes

Partner – China Practice and International

Arbitration

TIONG Teck Wee

Co-Head – Sustainability & Responsible

Business

Partner – International Arbitration and

Commercial & Corporate Disputes

Joel CHNG

Partner – China Practice, Restructuring &

Insolvency and Special Situations Advisory

Charles TIAN

Partner – China Practice, International

Arbitration and Commercial & Corporate

Disputes

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Silence is not a grant of power: emergency arbitrators in China-seated arbitrations

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About this law

Year: 2026
Current version: As enacted

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Where this comes from

Law-firm commentary · Silence is not a grant of power: emergency arbitrators in China-seated arbitrations, As enacted. Reader record updated on 6 Oct 2026.

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