Interim Measures On International Commercial Arbitration System

With the continuous development of economic globalization, the commerce between countries have dramatically increased, and more and more parties choose the arbitration as an alternative way to resolve disputes. Especially in recent years, the international commercial arbitration presents unprecedented prosperity, which is constantly improving and developing. Although the international community has reached much consensus in the recognition and enforcement of arbitral awards, the validity of the arbitration agreement and the applicable law of arbitration, except the interim measures. There are also controversial subjects in academic departments. So studying the interim measures of international commercial arbitration has important theoretical and practical significance.Interim measures are “double-edged swords”. Proper use will ensure the smooth conduct of arbitration procedure and safeguard the lawful rights and interests of the parties. But the abuse of interim measures will harm the authority of the arbitration and cause irreparable damage to the parties’ rights. Therefore, how to set up a set of legal system of interim measures already becomes the goal which the various countries tirelessly pursuit. Fortunately, significant progress has gained in some advanced countries because their domestic arbitration legislation made specific provision of interim measures. However, many countries frequently encounter 2 obstacles in the judicial practice because of the lack of unified legal system of the interim measures, so “UNCITRAL Model Law on International Commercial Arbitration” is very important and its Article 17 speaks the latest development for interim measures in international commercial arbitration.On the contrary, China’s arbitration legislation and arbitration rules have not generally stipulated the interim measures yet, which is far from the development trend of international arbitration and can’t basically meet the needs of the development of Chinese international commercial arbitration and is becoming a big block towards the internationalization of China’s commercial arbitration. So it is necessary for legislators to cause the attention and revise relevant provisions in China’s arbitration legislation. Based on the interim measures of our country system, the article points out the current situation and problems and makes suggestions for revision to further promote the system of China’s commercial arbitration. Comparative and empirical analysis methods have been applied in the thesis, which is divided into four chapters.The first chapter introduces the basic theory of interim measures in international commercial arbitration. First, it expounds the concept of interim measures in international commercial arbitration. Second, it clarifies the characteristics from different perspectives and indicates the meaning by their practical application. It finally describes the specific types based on the function and the purpose of interim measures.The second chapter focuses on issuing interim measures in international commercial arbitration, mainly from the release permissions and release conditions. First, it defines three models of issuing interim measures, and expresses the reasons for supporting concurrent power. Second, it highlights the conditions of issuing interim measures by the arbitral tribunal, both from the rule level and the practical level. Finally, it puts forward relevant proposals, including affirmative conditions and negative conditions.The third chapter describes the issues of extraterritorial enforcement of interim measures in international commercial arbitration. First, it illustrates the main obstacles interim measures encountered, and then it discusses the possible three ways for extraterritorial enforcement, including national legislation, international agreement and “UNCITRAL Model Law on International Commercial Arbitration”. Finally, it expounds the legislation practice of main countries and regions in the world.The fourth chapter analyzes China’s current situation of interim measures in commercial arbitration, the relevant laws and arbitration rules of interim measures and the issues of China’s interim measures included. According to the main issues, it puts forward proposals for improvement from three aspects: the issuing types, the issuing subject and the extraterritorial recognition and enforcement of interim measures.