International Commercial Arbitration Temporary Measures To Legal Issues

With the integration of global economy and the rising disputes of international trade and investment, international commercial arbitration has achieved rapid development in recent years. However, due to the fact that there are no uniform legal regulations concerning the issuance and enforcement of interim measures, interim measures have met a lot of problems in the international commercial arbitration practice, which directly affects the function of international commercial arbitration. The importance of interim measures in international commercial arbitration can be reflected by the fact that on one hand, interim measures can ensure arbitral tribunals to make correct awards on the merits of disputes and ensure the final enforcement of arbitral awards; on the other hand, the issuance of interim measures involves many risks and has great influence on the rights and interests of arbitration parties. Therefore, international society has paid much attention on how to establish efficient, convenient and fair interim measure system, and has made all kinds of efforts to solve the existing problems of interim measures so as to perfect the whole legal framework of international commercial arbitration. There are also many unreasonable legal regulations on interim measures of international commercial arbitration in China. On the basis of comparing and analyzing different interim measure approaches in relevant arbitration rules and arbitration laws, this article draw the conclusion that the problems of interim measures in China should be perfected by absorbing international experience to promote the healthy development of international commercial arbitration in China, and also put forward some concrete suggestions. Comparison analysis and case analysis have been used in this article. It consists of four chapters. Chapter One: First of all, the legal background of interim measures of international commercial arbitration is analyzed, and then, the nature, function and category of interim measures are defined. Chapter Two: After comparing and analyzing provisions of interim measures in relevant arbitration rules and arbitration laws, preconditions of issuing interim measures are introduced. Chapter Three: This chapter is divided into three sections. The first section is about the barriers of interim measures issued by arbitral tribunals, including barriers concerning arbitration third party, barriers in the early stages of arbitration and barriers of cross-border enforcement of interim measures. The second section analyzes the barriers of interim measures issued by courts, including barriers of interim measures when issued by the courts outside the seat of arbitration and barriers of interim measures when issued by courts in the early stages of arbitration. The third section summarizes the efforts made by ICC, WIPO and UNCITRAL to solve the problems of interim measures. Chapter Four: In the first place, the legal regulations of interim measures of international commercial arbitration in China are analyzed. Then, the problems of interim measures in international arbitration practice of China are analyzed from four aspects, namely, the fact of arbitral tribunals having no power to issue interim measures, the fact of failing to provide clear-cut securities for interim measures,and failing to provide interim measures toward conduct and pre-arbitration interim measures. Also, suggestions of solving existing problems are put forward.