A Study On The System Of Prohibition Of International Commercial Arbitration

Along with the rapid development of international trade, international commercial arbitration plays a more and more important role in solving economic and trade disputes. More and more businessmen choose the arbitration to solve their dispute because of its advantages, such as effectively, justice. The court in many common law as well as some civil law countries granted the plaintiff an injunction restraining the defendant from instituting a proceeding. The use of anti-suit injunction in the context of international commercial arbitration has raised many disputes. The main problem is that it appears to violate international comity. Our parties encounter injunction is a frequent occurrence nowadays, but there is quite a lack in relevant law to face these challenge actively. This paper introduces the anti-suit injunctions of the common law as well as some civil law countries, it also investigates the necessity and possibility of bringing the anti-suit injunction into China. This paper also tries to build anti-suit injunction of our own country with a hope to contribute to our anti-suit injunction study. This paper divides into three sections:The first section is the basic theories of anti-suit injunction in international commercial arbitration. First, the paper introduces the general concept, character and history origins of anti-suit injunction. Then comparing the anti-suit injunction in international commercial arbitration with in international civil and commercial litigation, to find their different condition of proposing and functions. Second, followings are four important principles within anti-suit injunction in international commercial arbitration, including autonomy of will of the parties, support arbitration, international comity and vested rights theory.The second section is legislation and practice of anti-suit injunction in international commercial arbitration, the paper discusses three different international rules towards anti-suit injunction. The first is Brussels Convention, the second is New York Convention, the last is UNCITRAL Model law on International Commercial Arbitration. These three conventions have a profound impact on anti-suit injunction around the world. The paper introduces the development of anti-suit injunctions in common law countries, and analyzes the standard of issuing anti-suit injunctions in these countries. And it takes some examples to analyze different views about the utilization of anti-suit injunction in civil law country.The third section is theoretical analysis and system establishment of anti-suit injunction in international commercial arbitration. Anti-suit injunction system has yet to be established in China. There are still divergent views. This paper is designed to make research and analysis from the feasibility, and put forward the idea of conditions of granting and accepting anti-suit injunction.