Interim Measures In International Commercial Arbitration

Arbitration is the most significant way to the settlement of international commercial disputes. Its significance is gradually manifesting while the economic globalization is deepening and the number of disputes is increasing. On one hand, it can reduce the unnecessary loss of the parties; on the other hand, it assured that the arbitration award can be carried out smoothly. The arbitral tribunal has occupied a very important position during the arbitration process. The current international trend is to expand the power of the arbitral tribunal. International organizations have made their own effort to the improvement of international commercial arbitration. Unicitral Model Law has provided reference for countries. Most countries have made legislation while the arbitration agency set their arbitration rules about the power of the interim measures hold by arbitration tribunal. The rule of recognizing and enforcing interim measures which was decided by arbitral tribunal is very rare in legislation and arbitration rules. For example, in ‘the New York Convention’, which is so-called the most influential international commercial arbitration rule,has been only instituted rules for the final arbitration award. Therefore, legislation and the arbitration rules still need to make their efforts into the development of interim measures in international commercial arbitration.The perfection of arbitration system will promote the development of international trade and enhance the confidence of the multinational businessmen, which means the reduce of trade risk can be recognized by businessman. It will increase trade and reduce barriers. China has developed rapidly in recent years. Some domestic arbitration institutions have made the effort in order to catch up with the international trend. CIETAC have modified their arbitration rules in order to follow the international trend. The China Pilot Free Trade Zone has made a lot innovation in their arbitration rules. However, our country’s national law about international trade arbitration is still lagging behind.There are many shortcomings existed in China’s legislation. By analyzed interim measures decided by arbitral tribunal and its recognition and enforcement in the arbitration law in some countries, in international commercial arbitration rules made by some arbitration agency and in the UNICITRAL Model Law, while compared with China’s legislation, the author has pointed out some shortcomings in China’s legislation and tried to give out some suggestions, hoping the international commercial arbitration can become better and better.General knowledge of arbitral tribunal and interim measures has been introduced briefly in the first. Arbitrator is the element of the arbitration tribunal. The establishment of the arbitration tribunal will take time. After this, it has presented the relation between the arbitral tribunal and interim measures. The necessity of the interim measures made by arbitration tribunal and the significance of its reorganization and enforcement has been illustrated. Only by recognition and enforcement, the value of interim measures made by arbitration tribunal can be realized.A detailed analysis of the legal problems in interim measures issued by the arbitration tribunal has been discussed. Exercise of any power need to have its own basis, so does the interim measures issued by arbitration tribunal. There are two main basis existed: one is arbitration rules and the other is domestic legislation. There should be some standard for interim measures issued by arbitration tribunal to avoid the misuse of interim measures. There are two ways to safeguard the benefits of the parties before the establishment of arbitral tribunal. The first way is to seek protection form court and the second way is to find help from the emergency arbitration tribunal. When the interim measures come to a third party, the parties can also seek protection from court and arbitral tribunal. Among all of these issues, the power of tribunal to make interim measures should be solved at the first. Only after this, other things about interim measures made by arbitral tribunal can be discussed meaningfully.In order to realize the value of interim measures issued by arbitration tribunal, the ways and solutions to the implementation of the interim measures made by arbitral tribunal has been discussed. The arbitration tribunal may urge the parties to fulfill the interim measures by its deterrent force or making adverse inference in the final award. The arbitral tribunal has no power of enforcement. At this time, the court’s intervention is a fine way to solve the problem here. Since the international trade is always participated by different countries, so the extraterritorial enforcement problems have existed. There are many obstacles in extraterritorial enforcement. There is a lack of domestic legislation here. Only a few of countries have made provisions about this. UNCITRAL Model Law has made some rules for guiding countries legislation, but it still need to be practiced.The status of legislation of our country has been discussed in the last part of this paper. Main issues have been revealed. Since some arbitration rules are more advanced than legislation, in order to get some inspiration, some arbitration rules have been analyzed here. Following analysis above, some advice have been provided. In order to keep up with arbitration rules, the power to issue interim measures should be given to arbitration tribunal first. At the same time, related matters should be worked out in arbitration legislation. What’s more, the reorganization and enforcement of interim measures made by arbitration tribunal should set guidelines in legislation. In the last, bilateral and multilateral cooperation should be promoted.