On Extraterritorial Enforcement Of Provisional Measures In International Commercial Arbitration

The extraterritorial enforcement of provisional measures means that these provisional measures are enforced in the countries or regions other than the seat of arbitration.Recently,because of the increasingly international trade,international commercial disputes increased a lot.International commercial arbitration wins the favor and trust of the international business subjects owe to its own advantages,such as the autonomy of the parties,the flexibility of procedures,and confidentiality.All of these lead provisional measures to an effective way in resolving international commercial disputes.In several international commercial arbitration,one party may choose a neutral third-party arbitration institution,when the party and the property are not in the same country.In order to avoid the adverse effects brought by the arbitration result,one party may remove the property or eliminate the main evidence against the enemy.As a result,the other party might be unable to recover its losses through the arbitration,and the provisional measures came into being.However,the current enforcement on provisional measures is quite different.The provisional measures are based on the Recognition and enforcement of Foreign Award(hereinafter referred to as the “New York Convention”).These difficulties have bad effects on the smooth formation of arbitration activities,which seriously affects the effectiveness of the international commercial arbitration legal system.Therefore,this paper mainly discusses the issue of extraterritorial enforcement of provisional measures in international commercial arbitration,intends to theoretically explore theconnotation and characteristics of extraterritorial enforcement of provisional measures,and combines the status of extraterritorial enforcement of provisional measures in international commercial arbitration cases,studies the extraterritorial enforcement basis and enforcement methods,and proposes to improve the extraterritorial enforcement system of provisional measures in China with my own advice and plans.This article consists of four chapters,counting 30,000 words.The structure of each chapter is arranged as follows:The first chapter introduces the definition of provisional measures of international commercial arbitration and the significance of extraterritorial enforcement.International commercial arbitration is favored by the parties because of its high efficiency,fairness and privacy.Provisional measures can guarantee the smooth progress of arbitration,ensure the effective enforcement of arbitral awards,and safeguard the legitimate interests of the parties,and thus receive more and more attention in practice.At the same time,the absence of the effective enforcement mechanisms in various countries and the differences between their legal systems has caused great obstacles to the implementation of provisional measures for international commercial arbitration.The second chapter mainly discusses the legal basis for the extraterritorial enforcement of the provisional measures of international commercial arbitration.The first verse discusses the different provisions of national arbitration legislation on the recognition and enforcement of extraterritorial provisional measures,explores the domestic legal basis for extraterritorial implementation of provisional measures.The second verse discusses the basis of international law,such as the European Commercial Arbitration Convention,the Convention on the Jurisdiction of Civil and Commercial Judgments and the Enforcement of Judgments.(hereinafter referred to as the "Brussels Convention")and the "New York Convention".At present,there is still considerable controversy over whether provisional measures can be implemented outside the New York Convention.There is no unified extraterritorial enforcement mechanism worldwide.In addition,this chapter discusses the conditions for the extraterritorial enforcement of provisional measures for international commercialarbitration.With regard to the jurisdiction of provisional measures,China's Arbitration Law provides that the court and the arbitration commission have the power to make a ruling.This is inconsistent with Model Law.Therefore,it should be drawn from the provisions of Article 16 of the Model Law(2006),and the arbitral tribunal has the power to decide on the validity of the arbitration agreement and the jurisdiction of the arbitral tribunal after the initial review by the arbitral institution.In addition,Public policy is an important factor affecting the enforceability of provisional measures for international commercial arbitration.Because the concept of public policy is uncertain,the extraterritorial implementation of provisional measures for international commercial arbitration is therefore uncertain.The third chapter mainly discusses the method of extraterritorial enforcement of the provisional measures of international commercial arbitration.Including the execution of the ruling,the execution of the judgment,the enforcement of the court,etc.,it is also possible to urge the parties to implement the provisional measures voluntarily,such as the bad list system and the insurance system.Different extraterritorial enforcement methods are designed to facilitate the parties to cooperate with the enforcement of provisional measures.Although the international community lacks a unified extraterritorial enforcement mechanism for provisional measures,it can learn from the international commercial arbitration awards and the extraterritorial enforcement system of international civil and commercial judgments to establish an effective extraterritorial enforcement mechanism for provisional measures of international commercial arbitration.The fourth chapter mainly discusses the construction situation and existing problems of the extraterritorial recognition and enforcement of commercial arbitration in China and provides some suggestions.Based on the discussion above,our country should make some legislative changes on law application for easier recognition and enforcement of provisional measures.China should take an active part in establishing an international cooperation mechanism for provisional measures.Public policy should be restricted when applied.Nowadays,the types of provisional measures in the arbitration legislation of China are limited to evidence preservation,propertypreservation and behavioral preservation.Regarding the issuance of provisional measures,China adopts the exclusive mode of the court.The arbitral tribunal only plays the role of transferring the application of the parties;There is almost no formal legislation in Chinese mainland.On April 2,2019,the Hong Kong Government and the Supreme People's Court of the People's Republic of China signed the "Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region"(hereinafter referred to as the "Arrangement"),which clarified the assistance of the mainland and Hong Kong.Article 2GG of the“Arbitration Ordinance” of the Hong Kong Special Administrative Region stipulates that provisional measures issued by arbitral tribunals outside Hong Kong shall be implemented in the name of judgments.The Hong Kong Special Administrative Region shall unilaterally recognize and enforce the issuance of extraterritorial arbitral tribunals.The provisional measures reflect the spirit of supporting arbitration.The mainland may wish to learn from the practice of the Hong Kong Special Administrative Region,sign a bilateral mutual assistance treaty or,based on the principle of reciprocity,clearly define the extraterritorial enforcement of provisional measures for international commercial arbitration;clarify the definition and types of provisional measures,and stipulate provisional measures for international commercial arbitration which is executed outside the domain.