Chinese Commercial Court Issues First Investigation Order for International Arbitration
Published 11 June 2025
Xia Yu
The lack of the right to compulsory evidence collection has always been one of the pain points of Chinese arbitration institutions. On 14 May 2025, the Shanghai International Commercial Court (“Shanghai Court”) supported an application for investigation and evidence collection based on an interim measure submitted by an arbitral tribunal of the Shanghai International Economic and Trade Arbitration Commission (“Shanghai International Arbitration Center”). The Shanghai Court issued an investigation order to assist in obtaining evidence. This is the first time a Chinese court has supported an interim measure for investigation and evidence collection in international arbitration in the form of an investigation order.
The application for investigation and evidence collection in this case originated from a cross-border data service contract dispute involving a Hong Kong company, a foreign company, and a Chinese company in Jiangxi Province, accepted by the Shanghai International Arbitration Center. One of the key issues of the arbitration dispute is to determine whether the contract is established between the parties by identifying the identities of the transaction representatives of each party. Since the transaction representative information is only a WeChat account, the parties cannot verify the account registration and other subject information by themselves. Thus, they applied to the arbitration tribunal for investigation and evidence collection. The arbitration tribunal issued a letter of assistance in the investigation to the third party, but it was rejected. It directly resulted in the obstruction of evidence collection and a deadlock in the case trial.
Article 46 of the Civil Procedure Law of the People‘s Republic of China stipulates that the court shall investigate and collect evidence that the parties cannot collect on their own due to objective reasons, or evidence that the court believes is necessary for the trial of the case. Article 46 of the Arbitration Law of the People‘s Republic of China provides that if evidence is difficult to obtain, the parties may apply to the Arbitration Commission for evidence preservation. Then the Arbitration Commission shall submit the parties’ application to the local court where the evidence is located. Detailed provisions on how to apply to the court to enforce arbitration awards and assist arbitration parties in investigation and evidence collection are provided in the Provisions of the Supreme People‘s Court on Several Issues concerning Trying Cases of Arbitration-Related Judicial Review and the Shanghai High People’s Court‘s Measures for Issuing Investigation Orders to Assist Arbitration Investigation and Evidence Collection (Trial) [ https://www.hshfy.sh.cn/shfy/web/xxnr_yshj.jsp?pa=aaWQ9MTAyMDM4MjA1MiZ4aD0xJmxtZG09TE0xMjE1z&zd= ].
It is a common practice in international arbitration for the parties to apply to the arbitral tribunal for interim measures for important evidence cannot be obtained during the trial. In the business environment assessment index system, the World Bank clearly defines “whether the legal framework allows the court to order interim measures to support arbitration” as the best practice of the global business environment. As a sample city for the World Bank’s expert survey on China’s new round of business environment assessment, Shanghai issued the Regulation on Promoting the Initiative for an International Commercial Arbitration Center in 2023 to promote the construction of an arbitration-friendly legal environment. Article 21 (2) of the Regulation provides that the parties may apply to the arbitration tribunal for interim measures, and the arbitration tribunal may submit its opinions based on the circumstances of the arbitration case to the court of Shanghai with jurisdiction over the case, which shall make a ruling and execute it after reviewing it under the law.
According to the above provisions and the provisions on interim measures for international arbitration in the Arbitration Rules of the Shanghai International Arbitration Center, the arbitration tribunal, after review, held that the information requested for assistance in investigation in the application was the key evidence of the case and played an important role in the fact finding of the case. Therefore, it made an interim measure decision to support the application. Subsequently, the arbitration tribunal applied for an investigation order to the Shanghai Court through the Shanghai Court’s international commercial “one-stop” dispute resolution platform and attached its decision and relevant materials of the parties.
After review, the Shanghai Court held that the evidence requested for assistance in investigation was relevant to the case and was necessary evidence for the arbitration dispute involved; the parties and the arbitral tribunal were unable to collect the evidence on their own despite efforts and attempts; and the interim measure decision made by the arbitral tribunal following the arbitration rules and common practices in international commercial arbitration complied with due process, and the opinions of the arbitral tribunal on whether to take interim measures based on the circumstances of the arbitration case can serve as an important reference for the court to review and issue an investigation order. Accordingly, according to the above provisions, the Shanghai Court decided to issue an investigation order to assist the arbitration parties in investigating and collecting evidence.
The Shanghai Court has implemented the above-mentioned provisions by reviewing the application for investigation and evidence collection based on the arbitral tribunal‘s interim measures and issuing an investigation order. Compared with the previous practice of the arbitral tribunal forwarding the parties’ application to the court, the arbitral tribunal’s interim measure decision can be used as the arbitral tribunal’s opinion, which helps the court to quickly and comprehensively understand the case and then make a decision on whether to grant the application. In this way, the Shanghai Court has transformed the content of “Court Assistance in Taking Evidence” in the international arbitration rules represented by the UNCITRAL MODEL LAW into an operational domestic judicial procedure, achieving an effective connection between arbitration judicial safeguards and international arbitration common practices.
This practice of the Shanghai Court not only provides a replicable solution path for similar cases but also promotes the benign interaction between arbitration and justice through a standardized and transparent review mechanism. The court reviews the parties’ application for investigation and evidence collection concerning the interim measure decision made by the arbitral tribunal, which reflects a friendly attitude towards international arbitration and helps Shanghai to become a global Asia-Pacific arbitration center.
The application for investigation and evidence collection in this case originated from a cross-border data service contract dispute involving a Hong Kong company, a foreign company, and a Chinese company in Jiangxi Province, accepted by the Shanghai International Arbitration Center. One of the key issues of the arbitration dispute is to determine whether the contract is established between the parties by identifying the identities of the transaction representatives of each party. Since the transaction representative information is only a WeChat account, the parties cannot verify the account registration and other subject information by themselves. Thus, they applied to the arbitration tribunal for investigation and evidence collection. The arbitration tribunal issued a letter of assistance in the investigation to the third party, but it was rejected. It directly resulted in the obstruction of evidence collection and a deadlock in the case trial.
Article 46 of the Civil Procedure Law of the People‘s Republic of China stipulates that the court shall investigate and collect evidence that the parties cannot collect on their own due to objective reasons, or evidence that the court believes is necessary for the trial of the case. Article 46 of the Arbitration Law of the People‘s Republic of China provides that if evidence is difficult to obtain, the parties may apply to the Arbitration Commission for evidence preservation. Then the Arbitration Commission shall submit the parties’ application to the local court where the evidence is located. Detailed provisions on how to apply to the court to enforce arbitration awards and assist arbitration parties in investigation and evidence collection are provided in the Provisions of the Supreme People‘s Court on Several Issues concerning Trying Cases of Arbitration-Related Judicial Review and the Shanghai High People’s Court‘s Measures for Issuing Investigation Orders to Assist Arbitration Investigation and Evidence Collection (Trial) [ https://www.hshfy.sh.cn/shfy/web/xxnr_yshj.jsp?pa=aaWQ9MTAyMDM4MjA1MiZ4aD0xJmxtZG09TE0xMjE1z&zd= ].
It is a common practice in international arbitration for the parties to apply to the arbitral tribunal for interim measures for important evidence cannot be obtained during the trial. In the business environment assessment index system, the World Bank clearly defines “whether the legal framework allows the court to order interim measures to support arbitration” as the best practice of the global business environment. As a sample city for the World Bank’s expert survey on China’s new round of business environment assessment, Shanghai issued the Regulation on Promoting the Initiative for an International Commercial Arbitration Center in 2023 to promote the construction of an arbitration-friendly legal environment. Article 21 (2) of the Regulation provides that the parties may apply to the arbitration tribunal for interim measures, and the arbitration tribunal may submit its opinions based on the circumstances of the arbitration case to the court of Shanghai with jurisdiction over the case, which shall make a ruling and execute it after reviewing it under the law.
According to the above provisions and the provisions on interim measures for international arbitration in the Arbitration Rules of the Shanghai International Arbitration Center, the arbitration tribunal, after review, held that the information requested for assistance in investigation in the application was the key evidence of the case and played an important role in the fact finding of the case. Therefore, it made an interim measure decision to support the application. Subsequently, the arbitration tribunal applied for an investigation order to the Shanghai Court through the Shanghai Court’s international commercial “one-stop” dispute resolution platform and attached its decision and relevant materials of the parties.
After review, the Shanghai Court held that the evidence requested for assistance in investigation was relevant to the case and was necessary evidence for the arbitration dispute involved; the parties and the arbitral tribunal were unable to collect the evidence on their own despite efforts and attempts; and the interim measure decision made by the arbitral tribunal following the arbitration rules and common practices in international commercial arbitration complied with due process, and the opinions of the arbitral tribunal on whether to take interim measures based on the circumstances of the arbitration case can serve as an important reference for the court to review and issue an investigation order. Accordingly, according to the above provisions, the Shanghai Court decided to issue an investigation order to assist the arbitration parties in investigating and collecting evidence.
The Shanghai Court has implemented the above-mentioned provisions by reviewing the application for investigation and evidence collection based on the arbitral tribunal‘s interim measures and issuing an investigation order. Compared with the previous practice of the arbitral tribunal forwarding the parties’ application to the court, the arbitral tribunal’s interim measure decision can be used as the arbitral tribunal’s opinion, which helps the court to quickly and comprehensively understand the case and then make a decision on whether to grant the application. In this way, the Shanghai Court has transformed the content of “Court Assistance in Taking Evidence” in the international arbitration rules represented by the UNCITRAL MODEL LAW into an operational domestic judicial procedure, achieving an effective connection between arbitration judicial safeguards and international arbitration common practices.
This practice of the Shanghai Court not only provides a replicable solution path for similar cases but also promotes the benign interaction between arbitration and justice through a standardized and transparent review mechanism. The court reviews the parties’ application for investigation and evidence collection concerning the interim measure decision made by the arbitral tribunal, which reflects a friendly attitude towards international arbitration and helps Shanghai to become a global Asia-Pacific arbitration center.