On Extraterritorial Enforcement Of Interim Measures In International Commercial Arbitration

The effectiveness of the legal system of international commercial arbitration increasingly depends on the enforcement of interim measures. A national or regional arbitration legislation and international commercial arbitration practice are increasingly concerned on the bottleneck of the system's construction. The establishment of an effective system of extraterritorial enforcement of interim measures of arbitration has become one of the important symbols of the modernization and attraction of the legal system of international commercial arbitration.In addition to an introduction and a conclusion, the dissertation is composed of five chapters which contain nearly 180000 Chinese characters as follows:The first chapter is to define the concept (namely before the final award in international commercial arbitration is to be implemented, in order to prevent further loss of arbitral parties, to ensure the smooth progress of the arbitration proceedings, or to enforce the arbitral awards effectively, according to the application of the parties or relevant provisions, a court or an arbitral tribunal has taken binding, preventive and remedial measures for the conservation to the property, evidence or conduct of the relevant arbitral parties and even a third person involved.) and characters (namely execution site is located outside of loci arbitri,issuers and enforcers of arbitral interim measures are diverse, the basis to enforce is relatively scarce, and executive category is relatively concentrated.), three kinds of classification(namely classification is based on the standard on different issuers, executers or executive objects.),three kinds of function(including to improve the system of international commercial arbitration, to establish the idea of pro-arbitration with judicial moderate intervention, and to reflect the multi-level, progressive functional pursuit of extraterritorial enforcement of interim measures of arbitration.),three kinds of effect (including the case closed in advance, to accelerate reconciliation, and to increase the attractiveness of international commercial arbitration system.) and other general issues of extraterritorial enforcement of interim measures in international commercial arbitration, and to limit the scope of the dissertation.The second chapter is mainly to answer the first question in this dissertation why a national or regional court should enforce the interim measures issued by an extraterritorial court or tribunal. From a legal point of view, this is the basis of extraterritorial enforcement of arbitral interim measures, including the basis of international law(such as article 6, paragraph 4 of European Convention on International Commercial Arbitration (1961), article 24 of the Brussels Convention (1968), New York Convention, and Article 19.4 in Buenos Aires Protocol on International Commercial Arbitration (1998).), domestic law(such as Hong Kong Arbitration Ordinance (2011), the Belgian Arbitration Law (2013), etc.) and theoretical basis (such as comity, reciprocity, and pro-arbitration, etc.). From the perspective of arbitral practice, it is also the driving force of international commercial arbitration system, namely making arbitration as predictable requirements of any kind of dispute resolution mechanism, which is undoubtedly the key to the growth of international commercial arbitration system. Through comparative study on the basis of international law and domestic law of extraterritorial enforcement of interim measures of arbitration, it is not difficult to find that although the legal or theoretical basis of extraterritorial enforcement of arbitral interim measures is not sufficient, and it has not yet formed the full application of the regional or global uniform application of system of rules, but at least providing a good foundation for the construction and further development of extraterritorial enforcement system of arbitral interim measures.Chapter 3-4 are mainly to answer the second question of the dissertation how a national or regional court is to enforce the interim measures issued by an extraterritorial court or tribunal now. This is mainly related to the conditions and methods of extraterritorial enforcement of interim measures in international commercial arbitration. Chapter 3 mainly analyzes the conditions of extraterritorial enforcement of interim measures in international commercial arbitration. Necessary conditions for its extraterritorial enforcement are as follows:Firstly, a related court or an arbitrator (including emergency arbitrator) has jurisdiction (including prima facie jurisdiction) to order interim measures, and the executive court has personal or territorial jurisdiction on the subject matter of arbitral interim measures. Secondly, through a reasonable assessment of the injury's likelihood, proportionality, urgency, and a reasonable possibility that the requesting party will succeed on the merits of the claim, as well as the appropriateness to provide security, the necessary requirements of ordering interim measures of arbitration will be satisfied. Thirdly, through the executive court's formal examination on ordering and enforcing conditions of interim measures, the claims for enforceability of interim measures will be fulfilled. The denial conditions of extraterritorial enforcement of interim measures of arbitration mainly include procedural public policy, substantive public policy, and the existence of certain negative requirements, etc.Chapter 4 researches the methods of extraterritorial enforcement of interim measures in international commercial arbitration. They include both the methods in domestic law and the methods in international law. The former are such as direct enforcement of arbitral interim measures, exequatur or assistance enforcement of arbitral interim measures, enforcement of the award or regarded as the award enforced, enforcement of the judgment or regarded as the judgment enforced and flexible methods of execution, and the latter are such as direct enforcement of judgment, enforcement of the award or regarded as the award enforced, etc. The choice is not the only, and the relevant national or regional legislation can choose one or several execution methods at the same time. Meanwhile, the international community should work together, and promote the construction of two-track mechanisms for implementation of interim measures:On the one hand, the existing the methods in domestic and international law of extraterritorial enforcement of interim measures in international commercial arbitration are deeply influenced by extraterritorial enforcement system of international civil and commercial judgments and international arbitral awards, and extraterritorial enforcement system of interim measures of arbitration should absorb their nutrients. We should establish direct extraterritorial enforcement system which fully reflecting their own characteristics of the arbitral interim measures.On the other hand, in addition to the enforcement of a national or regional court, the international community should explore alternative methods such as the blacklist system, the system of liability insurance of enforcement, the regime of industry organizations to urge enforcement, and the system of arbitral interim measures incorporated into arbitral awards, etc.The fifth chapter is mainly to answer the third question of the dissertation how a national or regional court should effectively enforce the interim measures issued by an extraterritorial court or tribunal in the future. Firstly, we should build a consensus and establish the principle of facilitating extraterritorial enforcement of interim measures in international commercial arbitration, and tap related conventions' potentials for enforce mental system of arbitral interim measures such as European Convention on International Commercial Arbitration (1961), New York Convention, Brussels Regulations (2012), the Inter-American of foreign judgments and arbitral awards extraterritorial Convention (1979), Buenos Aires Adams International arbitration agreement (1998),Arab Convention on Commercial arbitration (1987) etc. The regional and national exchanges and cooperation on enforce mental system construction of arbitral interim measures should be strengthened as follows:(l) ASEAN, Shanghai Cooperation Organization, the Eurasian Economic Union, the African Union, the Organization of American States and other regional organizations as well as " the Belt and Road " countries can learn the experience of system construction on arbitral interim measures from EU, Mercosur and establish their own regional system of extraterritorial enforcement of interim measures of arbitration. (2) Regional international organizations, countries or regions which have been established extraterritorial enforcement system of interim measures of arbitration should strengthen their mutual communication, complement each other, and further promote the construction of extraterritorial enforcement system of interim measures of arbitration issued by a court or an arbitral tribunal. (3) To strengthen reciprocal cooperation between countries or regions and to initiatively recognize or enforce arbitral interim measure issued by the other court or arbitral tribunal should be encouraged. Secondly, we should promote all countries or regions to make the Model Law be their domestic legislations and upgrade their legislations, promote international commercial arbitration rules to absorb the results of the Model Law, and impel amendments of the Model Law (2006) on interim measures system as follows:The emergency arbitrator system and the issuance system of interim measures involving third-party rights was incorporated in the Model Law, a court's right to issue arbitral interim measures should be empowered in the execute phase of an arbitral award, the disposal principle of the jurisdictional and effective competition on arbitral interim measures should be supplemented, ex parte interim measures system should be established, the right of an arbitral tribunal or an emergency arbitrator to issue punitive interim measures of arbitration should be empowered, extraterritorial enforcement regime of interim measures ordered by an arbitrator and a court should be improved, and promote the Model Law to become a customary international law. At the same time, China should also comply with the development of international commercial arbitration, absorb innovative achievements of extraterritorial enforcement system of arbitral interim measures in international commercial arbitration rules of china, make the Model Law (2006) become our own legislation and upgrade it, further improve the international commercial arbitration rules in china, and establish extraterritorial enforcement system of arbitral interim measures.