Study On Interim Measures Of International Commercial Arbitration

As one important method of resolving disputes among commercial entities in the global economic transactions, international commercial arbitration has been always in the process of self-improvement and development. Interim measures emerged in the International Commercial Arbitration from scratch and gradually achieved legitimacy status through practice. However interim measures are"double-edged swords". On the one hand, they are helpful to the smooth conduct of arbitration proceedings and the effective enforcement of arbitral awards; on the other hand, the abuse of interim measures will cause irreparable damage and unfairness to the party whom the measures are against. Therefore, rational design of the legal system for interim measures is particularly important. For a long time, the legal system of interim measures arbitration is not perfect in various countries, which leads to many problems in international commercial arbitration practice and directly affects the effectiveness of international commercial arbitration. Article 17 of"UNCITRAL Model Law on International Commercial Arbitration"speaks of the latest development for interim measures of international commercial arbitration. In contrast to China's legislation and practice, our law hasn't stipulated general arbitration provisions on the interim measures yet. The consequences include our country's arbitration legislation and practice falling far behind the development trend in international commercial arbitration; inconvenience for arbitral tribunal making full use of interim measures thus ruling fair judgments; most important of all, our international competitiveness of the arbitration cause eventually damaged by these defects for the reason we can not provide comprehensive protection for the applicants. Based on a comparative analysis on interim measures modes established or indicated by relevant arbitration rules, arbitration law and arbitration cases, this thesis makes comments on the interim measures in China's arbitration law and practice and comes to a conclusion that international experience can be referred to improve our interim measures system and create a favorable legal environment for healthy development of international commercial arbitration cause in China. Comparative and empirical analysis methods have been applied in the thesis, which is divided into five chapters.The first chapter analyzes the legal background of interim measures'origin in international commercial arbitration. Firstly it introduces historical development and practice reality of interim measures, then clarifies the value preference from different perspectives, and finally indicates the meaning by their practical application.The second chapter focuses on law property of interim measures in international commercial arbitration. First of all, it provides the definition and characteristics of interim measures; and then describes the specific types; finally gives a comparative analysis on similarities and differences of interim measures among the international commercial arbitration system, the common law system and civil law system.The third chapter discusses on the following three topics: obstacles of issuing interim measures exclusively by the arbitral tribunal, obstacles of issuing interim measures exclusively by the court and a summary on interim measures releasing authority allocation in the major arbitration institution rules and national arbitration laws which leads to a conclusion that the rules and the laws gradually develop on the same track. The fourth chapter describes related legal issues of the extraterritorial enforcement of interim measures. First it describes the issuance and implementation form of interim measures; and then it discusses whether the"New York Convention"can be applied in the implementation of interim measures; thirdly it introduce the judicial practice of various countries to assist extraterritorial enforcement of interim measures made by arbitral tribunal, at last it elaborate related provisions of"UNCITRAL Model Law on International Commercial Arbitration".The fifth chapter analyzes China's laws and regulations on interim system of International Arbitration from four aspects: the issuing time, the implementation objects, the issuing authority allocation and the problem of specifying an organ of courts to review the issuance of interim measures. It points out the deficiencies and puts forward proposals for improvement.