A Study On The Interim Measures Of International Commercial Arbitration

With the continuous development of economic globalization, the commerce andinvestments between countries have dramatically increased, which results in a varietyof international commercial disputes. Because of neutrality, lower costs and highefficiency, international commercial arbitration prevails among parties, which isapplied to deal with disputes, instead of the lawsuits in national courts with inevitabledisadvantages of complexity and higher costs. Among the research of the legalmechanism of international commercial arbitration, the issue of interim measures hasalways been fundamental and core parts. Actually, the authority of issuing, theacknowledgement and enforcement of interim measures have greatly influenced theoutcome of a case. Because of the nature of enforceability and provisionalcharacteristics, if interim measures are issued with irrational reasons, the parities maysuffer great loss beyond estimation. Thus, the basic types, application requirementsand the cross-border enforcement of interim measures are considered to be the priorityparts among the study of international commercial arbitration. However, recentlyChina’s national laws such as the Arbitrational Act, the Civil Procedural Law makecomparatively vague and random rules on interim measures of internationalcommercial arbitration which are weak in practice. In order to cover the need ofinternational trade and meet the standards of international practice, it is an emergencymatter to perfect the national legal system of interim measures of internationalcommercial arbitration,The thesis contains five parts. By summarizing diverse stipulations and patternsof interim measures formulated by the globe, the thesis makes comparison andconclusion of international legislation and practice on interim measures, whichprovides useful suggestion for the improvement of China’s Arbitration Act and helpsfor constructing a beneficial legal environment for healthy and rapid development ofinternational commercial arbitration in China. The first part introduces the basic information of interim measures including thedefinition, characteristics, the main types of interim measures, and then clarifies thekey value for international commercial arbitration.The second part demonstrates the application requirements for interim measures.Based on important statutes of UNCITRAL Model Law on International CommercialArbitration and important foreign arbitration legislation and rules, the thesis gives asummarization that the requirements can be divided into national requirements andUNCITRAL Model Law requirements for applying for interim measures.The third part discusses three basic patterns of deciding interim measures whichare issued exclusively by the court, released exclusively by the arbitral tribunal andthe authority shared by arbitral tribunal and court. On the analysis of individualpattern’s defects and merits, the thesis gives a conclusion that the third patterncomparatively caters to the demand of international transactions at present andbenefits the development of national arbitration legal system in China.The fourth part describes the implement of interim measures, and points out thelegal problems of the extraterritorial enforcement of interim measures released byforeign countries. This part introduces related stipulations from foreign laws,international conventions and UNCITRAL Model Law of implementation of interimmeasures, and then it discusses whether the New York Convention can be applied inenforcement of interim measures to assist extraterritorial enforcement of interimmeasures made by foreign countries.The fifth part explains exiting laws on interim measures in China’s internationalarbitration legal system and figures out the disadvantages and provides usefulsuggestion for improvement.