Interim Measures In International Commerical Arbitration

Interim measures play a crucial role in international commercial arbitration. The availability and handling of interim measures in international commercial arbitration has become one of the main issues in developing a legal setup for arbitration. In international litigation and arbitration, the availability or otherwise of interim measures can have a substantial effect on the final result, especially when issues relating to protection of evidence and assets arise before or during the course of the proceedings. To this end, interim protection of rights in international commercial arbitration today is as significant as the final protection of those rights since once it has been granted, an interim measure, "in its own terms, may have final and significant consequences that cannot be reversed even if the measure is later modified or turns out to be unnecessary in the light of the final award." Moreover, the practical importance of interim measures of protection is well understood by litigation and arbitration practitioners alike. From, and in some cases even before, the outset of court or arbitration proceedings, problems may arise that can have a major, at times determinative, effect on the final outcome.Further, the growth in the importance of arbitral interim measures are related to the well-functioning of any method of adjudication can be illustrated with regard to Mareva injunctions. Mareva injunctions prevent the dissipation of assets. If such a mechanism would not be available for the time that passes until final adjudication takes place, the winning party would only obtain a "Pyrrhic victory".Hence, the need for interim measures is absolutely necessary to protect what is at stake in the arbitration; without the protection of such provisional remedies, the outcome of the arbitration could become meaningless to the winning party since it would probably affect the justice of the final award and the enforceability thereof.This paper consists of four chapters.Chapter 1 sets out a brief introduction to interim measures by summarizing their characterizations and forms.Interim measures must deal with the interaction between the arbitral and the judicial power promptly so that to enhance the effectiveness of arbitration, and further to meet the parties expectations in accordance with their arbitration agreement. This is what the arbitration depends on to survive. Therefore, chapter 2 aims to demonstrate that the national courts should be limited to a facilitative role in arbitral proceedings, whereas the arbitral tribunal should have discretion to decide the procedure matters tied closely to the merit of the case. To be precise, this paper analyzes the interaction between the judicial and arbitral powers only limited to interim measures of protection in arbitration proceedings. It also contains a review of existing international arbitration legislations in respect of interim measures.Chapter 3 emphasizes the enforcement of interim measures of protection, especially the status quo of overseas enforcement of interim measures.In the last chapter, however, this paper focuses on the Chinese arbitration legislation by comparing it with the main international arbitration legislations and practical experiences, and further demonstrates that current Chinese arbitration law calls for reform.