A Study On The Implementation Of Temporary Measures In International Commercial Arbitration

Alone with the fast developing of international trade liberalization, there areincreasing international business disputes. Arbitration, as a non-litigation disputesolution, by virtue of its features that independent, efficient, convenient, andconfidential, attracts more and more businessmen to adopt it when dealing withbusiness dispute. In order to guarantee the enforcement of decisions, protectlegitimate interest of parties, and improve the effectiveness of dispute solution,interim measures in the international business arbitration attract increasing attention inrecent years. Interim measures grow out of nothing and constantly developed. Theenforcement of interim measures has significant meaning to international disputearbitration. Whether an issued interim measure can be effectively enforced directlyaffects parties’ equities and further development of international business arbitration.For a long time, legislations of jurisdictions regarding arbitration and rules ofarbitration institutions do not hold concordant attitudes toward interim measures. Thisresult in that difficulties within the enforcement of interim measures cannot beovercame effectively. The second working team of The United Nations Commissionon International Trade Law (UNCITRAL) conducted a series of discussions andresearches on interim measures since2002. In the year of2006, The UNCITRALModel Law on International Commercial Arbitration (Model Law) was amended.Specific regulations provided by section17of Model Law regarding recognition andenforcement of interim measures demonstrate the latest development on this matter. InChinese legislation and practical reality, the Arbitration Law does not provide generalregulations on interim measures; arbitration institution is still playing a “post man”role in interim measure proceeding; arbitral tribunals have no authority on issuinginterim measure and while courts remain the only subject of issuing and executinginterim measure. The current institution has negative effect on the development ofarbitration. This deviation from international arbitration trend hindered arbitraltribunal from making fair and just decision. More important, it compromises the fullyprotection of parties’ legitimate equities. Based on the compare and analysis of relative arbitration rules, legislation, cases on enforcement and solving model ofprepositive issue problems of interim measures, this paper comments on Chinesearbitration legislation and practice of recognition and enforcement of interimmeasures, and reaches the conclusion that it is better for China to use currentinternational standard practices as reference for its own work on perfecting interimmeasure procedures in order to build a better and healthier legal environment forinternational business arbitration development.This paper mainly adopts empirical analysis and comparative analysis andcontains four chapters. The first chapter provides an overview of interim measures,includes conception, content, and categories, and then illustrates issues onenforcement and issuing authority.Chapter two focuses on enforcement issues of interim measures released bytribunal and courts. Enforcement out of the jurisdiction in which it was issued playsthe most important role in this chapter and contains an analysis of whether the interimmeasures fall in the scope of “decision” defined by The1958New York Convention.A summary of conditions of arbitral tribunals on issuing an interim measure is alsoconsidered. Because of the judicial nature of courts, interim measures issued by localcourts expects few difficulties on enforcement, however, enforcement in otherjurisdictions relies on conventions and reciprocal treaties between jurisdictions. Atlast, an analysis of threshold for a court to issue an interim measures contributes thelast part of this chapter.Chapter three provides a scrutiny of regulations imposed by the2006amendmentof the Model Law. The amendment bill to section17thof the Model Law proposed bythe second working team was passed at the39thconference of UNCITRAL on June2006, in which an “independent” enforcement procedure of tribunal interim measureswas found. The fourth chapter illustrates the second working team’s attitude towardsthe legislation regarding interim measures, and analyzed the intention of section17ofthe Model Law, its advantages, and what needs further clarification.Chapter four discusses Chinese attitudes towards the enforcement of interimmeasures. Enforcement problems are far from being real issues due to Chinese arbitral tribunals’ lack of authority to issue interim measures. According to comprehensivesurvey of international business arbitration development trend, China should absorbother countries’ experience on this matter, and, combine with Chinese reality, includearbitral tribunals into the scope of issuing interim measures, and further regulate theenforcement matters. This chapter also introduces The China (Shanghai) Pilot FreeTrade Zone Arbitration Rules which was enacted by the Shanghai InternationalEconomic and Trade Arbitration Commission and will come into effect on May first,2014. It is the first free trade zone arbitration rules in China.