Interim Measures In International Commercial Arbitration

In the process of arbitration, the court and the arbitral tribunal can generally order a variety of interim measures of protection, including measures designed to preserve the status quo of the dispute, measures designed to facilitate the enforcement of the arbitral award, and measures designed to facilitate the production of evidence. Internationally, the use of interim measures in arbitration has become more and more popular. Arbitration statutes of many jurisdictions, as well as rules of arbitration institutions, have incorporated articles with regard to interim measures.While the different sets of rules of each arbitral institution are fairly similar, the problem of interim measures of protection is not effectively addressed by any of the various institutional rules. Although arbitration rules may provide for the issuance of interim measures of relief, there has been no uniform practice among arbitral tribunals in granting or denying such relief. Instead, some arbitral tribunals grant interim measures, others explicitly do not, and some tribunals direct parties to national courts for resolution of interim awards. Tribunals refer parties to courts because arbitral tribunals possess no coercive power for enforcement of their interim orders, and because provisional remedies can only be properly enforced through the court system. Although interim measures can be coercively enforced through the courts, presenting arbitral orders to courts is often problematic.In China, the Arbitration Law 1994 has absorbed almost all the doctrines underlying modern commercial arbitration. However, with regard to interim measures of protection, the Arbitration Law 1994 just copied the traditional mechanism designed for civil litigation, with evidence preservation and property preservation as the main available measures.This article which constitutes four chapters first examines the models of arbitration law on interim measures in present legeal system. Detailed analyses are then made on a variety of issues regarding the two main types of interim measures in the context of arbitration, i.e. evidence preservation and property preservation. Attention is also paid to how the measures operate in the process. The author looks into two issues that are still to the forefront of arbitration law, whether the tribunal may order interim measures and whether the interim measures may made against other parties. Finally, the author proposes that the authority should be given to the tribunal to grant interim measures in China's arbitral system.