Order for Preservation of Evidence
Order for Preservation of Evidence
An order for preservation of evidence should be made and executed by the court of competent jurisdiction rather than the arbitral tribunal or arbitration commission, as the latter does not have the judicial power.
In international arbitration in China, a party requesting preservation of evidence should file a written petition to the arbitral tribunal for referral to the court of competent jurisdiction or directly to the court of competent jurisdiction in case of an emergency where the evidence sought to be preserved may be destroyed by the controller or become difficult to obtain during the proceedings.
Although the Civil Procedure law states that the court of competent jurisdiction may make an order for preservation of evidence on its own initiative or at the request of a party, a party seeking to perpetuate any evidence shall file a petition as the court does not directly participate in the arbitration proceedings. Therefore, only the tribunal deciding on a case has the right to make an order for preservation of evidence on its own initiative based on the specific circumstances of the case.
The court that has made an order for preservation of evidence is also responsible for the execution of the order, or may request any other court to execute the order where necessary, appropriate, and expedient.
Robert Zhang 
Steve Li 