The Establishment Of Entergency Arbitrator System Of Commercial Arbitration In China

As the significant innovation, the emergency arbitrator system has been incorporated into the arbitration rules of the major arbitration institutions of the world. Some leading countries（regions） have confirmed the effect of the orders made by the emergency arbitrators through the amendment of arbitration laws, and establish certain modes for the enforcement of the above orders. Under such circumstances, major arbitration institutions in China adopted emergency arbitrators during the revision of arbitration rules recently, with the purpose to grant the parties with interim remedies in the enforcement countries where orders issued by the emergency arbitrators can be enforced. On the contrary, the issue of effect and enforcement of emergency arbitrator orders remains unaddressed in PRC law. To empower the arbitration parties with the interim remedies granted by emergency arbitrators and facilitate the enforcement in mainland China, the civil procedural law and arbitration law shall be amended accordingly.In that respect, to learn from the cutting-edge systems adopted by the major global arbitration institutions, integrate the particular judicial policy and awareness of our countries, reasonably arrange the details of emergency arbitrator system and render feasible legislative suggestions constitute the major part of this thesis. To achieve that purpose, various elements including the nature of arbitrations, the protection of arbitration parties’ rights and interests, the cost of arbitration proceedings are comprehensively evaluated in this thesis; the methods analysis via comparative law and cases are utilized. The thesis is composed of the following four chapters:Chapter One is the general introduction of emergency arbitrators in commercial arbitration. In this part, the development process of emergency arbitrators is briefly introduced, the application of emergency arbitrators in major global arbitration institutions is presented, as well as the strengths and weaknesses of emergency arbitrators compared with traditional interim measures made by PRC courts, which provides the background for the legislative suggestions in the following chapters.Chapter Two analyzes the legislative and judicial status quo of interim measures in commercial arbitration in our country. Firstly, the interim measures can be categorized chronologically as the pre-arbitral interim measures and interim measures in the process of arbitral proceedings, which is one element of innovation of this thesis. Secondly, the Civil Procedure Law amended in2012and the Arbitration Law as the legal basis are evaluated, with the analysis of related cases. This chapter focuses on the limitation of current legislation concerning the establishment of emergency arbitrator system.Chapter Three focuses on the new development of the arbitration rules regarding the emergency arbitrators. On one hand, the significance of such innovation is approved; on the other hand, the application scope of such arbitration rules in mainland courts of China is rather limited since there is no legislative support for the enforcement of such orders. The necessity and urgency of amendment of laws is emphasized.Chapter Four mainly addresses the specific legislative suggestions in establishment of emergency arbitrators in China. In the beginning, the particular judicial awareness in commercial arbitration in China is presented, which justifies the principle of integrate the local status into the amendment of law. Specific suggestions are then provided including the application methods, proceedings, the competent issuers, the enforcement methods based on the reference of advanced experience of global arbitration institutions, among which the methods of incorporating the judicial policy of China in the legislative proposals is the element of innovation in this thesis.